United States v. Albert Puco
436 F.2d 761
2d Cir.
1971
Check Treatment

*1 inаctivity by authori- ent due to violate are not so extended

ties se, petitioner not al-

process per has

leged prejudiced him

hearing revocation resulted parole. ap undisputed facts Since petitioner peared matter ‍‌​​​​​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​​​​​‌‌‌‌​‌‍of law that relief, evidentiary an to entitled Wright required. (9thCir.1964). Dickson,

Affirmed. City, Goldberg,

Jay York New pellant. Atty. Wallenstein, S. Asst. U. David Atty. Jr., (Whitney Seymour, U. North S. York, Ross of New District Southern counsel), Sandler, Atty., of Asst. U. S. America,

UNITED STATES appellee. Appellee, MOORE, SMITH and AN- Before Judges. DERSON, Circuit PUCO, Appellant. Albert Docket 34960. Judge: SMITH, J. JOSEPH United States Court appeal judgment of This is an from a Second Circuit. conviction, following jury trial Argued Oct. 1970. for the United States District Court York before Southern District New Decided Jan. 1971. Judge Pollack, indict- on a two-count charged the sale The first count ment. quantity in violation of cocaine 7237(b), 4705(a) U.S.C. §§ alleged conspiracy to second count illegally imported sell and receive the ‍‌​​​​​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​​​​​‌‌‌‌​‌‍At under 21 U.S.C. §§ defendants, Albert trial there were two here, Roberto sole convicted on Puco’s find error both counts. We appeal remand reverse and undercover On June informer, later identified Martin, ar- as AI range met with Gonzalez large quan- purchase of a for the attempted tity of heroin. Gonzalez supplier his “contact” identified do so. unable petitioner 11177(3). Act, of by is not § unlawful Code rendered Uniform Calif.Penal (9th Heinze, fact that returned See Seward 1958). Arizona extradition rather than procedures the informal authorized *2 by person Appellant post-arrest, “Al.” contact as a the name of contends that a meetings by There a series made out-of-court statement Gonzalez agents Attorney tween Gonzalez where Assistant United States discussed, implicating improper- various terms sale were Johnson ly placed Puco оf the was parties but the agreement, were never At the trial before reported Mr. Johnson asked Gonzalez series Gonzalez “feeling (i. e., questions statement; “Al” sensed about each was heat” question presence agents) of enforcement was stated as “Did tell me” go through asking you or “Do transac- recall me * * During meetings agreed *.” tion. on two oc- Gonzalеz to much of Agent spoke casions Scroeca “Al” what was so asked but denied each of telephone. involving several such' assertions objection to which was made. We thrоugh, After the heroin deal fell appellant prejudi- this contention of Agent approached Ellin Gonzalez injected cial error was here taken. well purchase if he cоuld cocaine. some Gon- Using statement, which was never get quan- told Ellin that he could admitted into evidence either de- tity price an excellent fendant, way placed in this in effect the same contact. stated that Gonzalez himself be- highest supply quality Bo- highly and was therefore livian cocaine available rather than the prejudicial. prosecutor by his rеad- type Peruvian which was more common Arrangements ing purported from the on the street. made plainly the form of his for Ellin to drive Gonzalez to an address representing that Gonzalеz had in fact evening on White Plains Road prac- made the statements him. This July 2, parked 1969. The two men widely tice has been condemned as this car and waited until man identified la- very court noted in a factual situation ter as Albert Puco came out of similar case. United repair shop. a TV Ellin testified that Block, my Gonzalez said “There is man now. 1937): bag.” He has the stuff in a Puco brown directly adjoining judge’s charge apart- walked into an mend- building. got nothing; Gonzalez ed tangle out of he left the to disen- building, car and entered re- the same in their minds the innocuous turning bag part after 30 seconds with a con- which the witness had conceded taining kilogram great one-half from the cocaine. bulk which he had dis- * * * Surveilling agents then moved affirmed the natural con- arrested Gonzаlez. Puco clusion the same defendants (were apartment time walked guilty charged) out of the build- of the crimes up rapidly the street but that had suborned the wit- agents. by wás arrested one of thе ness to it. also, Greenberg [See v. United Both Gonzalez and Puco testified at 474-475 the trial. Gonzalez admitted the deal- Dunn v. United ings with the and the events 1962).] 885 Cir. Road, White Plains but he denied that he knew any part Puco that Puco Another raised in operation. Puco likewise denied conspiracy charging volves the count vi any that he knew Gonzalez or had olation of 21 U.S.C. (the §§ in the transaction. He maintained that importation statute). Puco he had ing shop closed TV was walk- contends was insufficient evi there approached to his car when charge dence to him аgent, identification, asked for drug imported required that the and then told he was under arrest. He section In Turner v. United entering building. apartment 24 L. (i. e., plier (1969), Supreme made Court Ed.2d pointing provisions allowed out Puco on found street; of Puco’s identification conclusive Agent Scrocca; voice the fact to be possession Puco were unconstitu was said to enterеd from mere since, building heroin, apartment shortly is a there unlike before Gon tional *3 actually emerged cocaine) of the cocaine the substantial amount govern country. рroduced in could then The further infer that the present way Gonzalez could have known ment was therefore that originated evidence that the cocaine in Bolivia either direct or circumstantial knowledge. showing if Puco had such would be he had been told this Moreover, opin in an court held that this is sufficient as Puco. W'e doubt by Judge finding Hays support v. ion in States evidencе to a knowl United of (2d 1962), Massiah, 62, edge importation 69 on 307 F.2d Cir. the grounds, 201, ruling 84 rev’d on other 377 in view of our on first U.S. the 1199, govern 246, unnecessary L.Ed.2d the find it S.Ct. 12 we to ‍‌​​​​​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​​​​​‌‌‌‌​‌‍deter prove proof. sufficiency must the mine the of this thаt imported to each de prejudicial Since we knowledge by de fendant and one such prosecutor placed manner in which the illegal may fendant credibility in his own balance be to the other defendants. witness, against that do not we States, g., [See, e. Hernandez v. United reach the contention that further (9 v. 114 Cir. Jefferson use involved a violation 193 Cir. United of the Bruton doсtrine.1 We find no denied, 928, 1965), 85 S. cert. 381 U.S. ground appellant’s in for reversal other 686; 1567, 14 L.Ed.2d and United Ct. claims of error. (2d Agueci, F.2d Cir. 310 817 and remanded Reversed 959, 1962), denied, U.S. cert. 372 1013, The 10 L.Ed.2d 11.] 83 S.Ct. MOORE, Judge (dissenting): government argues it that sincе showing present testimony that Gonzalez opinion majority reversal that prospective had told his customer theory upon prosecutor rests from Bolivia came impropеrly placed his own presented since it circumstantial had I can to no such come sup Gonzalez, upon evidence Puco was Gonzalez’s conclusion the facts. 123, impeаchment, 1. Bruton United 391 never v. it became admis- 1620, 88 20 L.Ed.2d it S.Ct. Yet remained 476 sible O’Neil. Compare, Ballentine, record, 410 United States tells and Bruton us 1969), denied, jury is, cert. to the court’s instruction 935, 928, law, L.Ed.2d 397 U.S. 25 matter of ineffeсtive. require damage where the Bruton we held done the out of court just ments so as the witness was satisfied statement was what would have called his own witness and as refused to take the been had Runnels stand, Nelson, took the with O’Neil v. stand all. 1970) Green, 90 S. court, Douglas relying (1970) Bruton Ct. L.Ed.2d 489 relied Alabama, distinguish is the United L.Ed.2d stated: mak since there the conceded witness Run- It in O’Neil’s case true the statements available nels did the stand and was thus take full cross-examination trial as discrepancies available But for cross-examination. in his two versions of events; prior “affirm the as Green did not statement statement his”; flatly making preliminary it. Un- had been made at circumstances, der these while the state- trial at which defendant’s counsel was against Runnels, ment was admissible cross-examination. conducted or as an admission confession and co-defendant, Puco’s had taken the stand inferred Upon in his own defense Bolivian Puco. source. Gonzalez, pros- cross-examination agree majority I as to the prefaced ecutor a series of other claims of error. telling you me words “Do recall Finding judgment, no I ** *" me “Do recall would affirm. * * *” impliedly hаd statement which Gonzalez It in his office. prosecutor, who testifying. To some of an- an affirmative tions Gonzalez negative swer, “I such as *4 say say

didn’t that” or “I didn’t you.” Concededly, personal a less Rаlph E. FREDERICKSON and James Brand, individually, proach behalf on their own the formulation similarly and on behalf of all others preferable al- tions would have been situated, Angeles Los Local Fedеration though frequently un- this form is used System affiliated Federation der similar situations. had ev- Railway Employees’ No. 114 of the De- ery opportunity ‍‌​​​​​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​​​​​‌‌‌‌​‌‍he had partment, AFL-CIO, Appellants, made the not hеsitate to do stake was so. At SYSTEM FEDERATION NO. 114 OF prosecu- Gonzalez’ —not RAILWAY EMPLOYEES’ DEPART- assuming tor’s. But even MENT, AFL-CIO, Angeles Los Local trial, System few in the course of the Federation No. affiliated with Railway Federation ployees’ No. 114 Em- Harrington principles unless the AFL-CIO, Department, Appel- California, lees. 23 L.Ed.2d 284 disre- are to be No. 24197. garded, certainly fall United States Court of category. into a “harmless” Ninth Cirсuit. far more direct statements misstate- Dec. lawyers, ments of witnesses even the learned Court itself are erased from jurors’ minds that now-standard- segment every charge usually

ized ad-

vising “you in substance that ignore completely

are to etc.” The trial

court here these instructions. As jury system prevail, ‍‌​​​​​​​​‌​‌‌‌​‌‌​​​‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​​​​​‌‌‌‌​‌‍as the is to presumed to follow court’s Only

instructions. in the event of a involving inability

Bruton1 situation

confront has this been dis-

honored. importation, ap- to As

pellant correctly principle pro- states the

hibiting imputation to a

co-conspirator without more but here

there was more from 1. Bruton v. United 20 L.Ed.2d 476