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Docket Number

No. 210, Docket 33235.

Attorney(S)

Laura Banfield, New York City (Haliburton Fales, 2d, New York, New York, on the brief), for appellant. Maurice M. McDermott, Asst. U.S. Atty. (Robert M. Morgenthau, U.S. Atty. for Southern District of New York, Leonard M. Marks, Asst. U.S. Atty., on the brief), for appellee.

Judges

Paul Raymond Hays

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Smart Summary

Summary of Opinion: United States v. Cristobal Gonzales Castro, No. 210, Docket 33235 (2d Cir. Nov. 14, 1969)

Factual and Procedural Background

This opinion reviews an appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York. The appellant, Cristobal Gonzales Castro, was convicted by a jury of dealing in narcotics in violation of 21 U.S.C. §§ 173 and 174. The appeal was argued on October 17, 1969, and decided November 14, 1969, before Judges Friendly, Hays and Anderson, with Hays delivering the opinion.

The principal factual events, as described in the opinion, are: narcotics agents with a search warrant entered an apartment and found Castro. Castro approached the agents with his hands raised, said "I've got it. I will give it to you," removed a bundle of glassine envelopes from his trousers, and threw it on the floor. An agent observed the envelopes contained a white powder. At the same spot the agent also found a tinfoil package containing a white powder. Castro was arrested.

While still in the apartment, agents performed a field test on the tinfoil package which indicated the presence of heroin. A later test of the contents of one glassine envelope also revealed heroin. After those field-tests, the contents of the tinfoil package and the glassine envelopes were combined into a common container; a government chemist later tested the contents of that container and found heroin. A further chemist test of traces scraped from the sides of the glassine envelopes also showed heroin.

At trial the court excluded the tinfoil package as evidence, reasoning that the evidence did not sufficiently show appellant's possession of that package. Nevertheless, the trial court admitted the common container and the results of the test on its contents over appellant's objection. Appellant appealed, assigning error to that evidentiary ruling and to a jury instruction that "every witness is presumed to speak the truth."

Legal Issues Presented

Whether admission of the chemical test results of the contents of a common container (into which a tinfoil package and glassine envelopes had been combined) was prejudicial error given the trial court had excluded the tinfoil package as evidence.
Whether the trial judge's initial jury instruction that "every witness is presumed to speak the truth" constituted reversible error, and whether withdrawing that charge cured any potential harm.

Arguments of the Parties

Appellant's Arguments

Admission of the test results from the common container was prejudicial because, the appellant contends, those results could only show that either the tinfoil package or the glassine envelopes (or both) contained heroin, but could not prove that the heroin originated from the envelopes (the items properly before the jury) rather than the tinfoil package (which was excluded).
Assignment of error to the trial judge's jury instruction that "every witness is presumed to speak the truth," implying that the instruction was improper and potentially misleading to the jury.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's (government's) legal arguments opposing the appellant's contentions.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Wanton, 380 F.2d 792 (2d Cir. 1967)	Used to support the view that admission of certain evidence, although arguably improper, may not be sufficiently prejudicial to require reversal where other properly admitted evidence suffices to sustain a conviction.	The court cited Wanton in concluding that even if the admission of the common-container test results was erroneous, the error was not sufficiently prejudicial because other tests (field test and chemist's test of traces from the glassine envelopes) provided ample evidence to sustain the conviction.
United States v. Bilotti, 380 F.2d 649, 656 (2d Cir.), cert. denied, 389 U.S. 944 (1967)	Described the jury charge that "every witness is presumed to speak the truth" as serving no useful purpose and potentially being very misleading; trial courts would best refrain from using it.	The court relied on Bilotti's characterization of that jury charge as problematic. In the present case, after the trial judge withdrew the instruction and told the jury to disregard it, the appellate court held that this action neutralized the possible bad effects identified in Bilotti.

Court's Reasoning and Analysis

The court's analysis proceeded in two primary strands corresponding to the evidentiary challenge and the jury-instruction challenge.

Concerning the admissibility of the chemical test of the common container, the court first acknowledged that if the trial court had correctly excluded the tinfoil package, then the test of the combined contents could not, standing alone, establish the necessary link between the heroin and the items the jury could properly consider. The court explicitly stated: "Assuming that the trial court's ruling as to the admissibility of the tinfoil package was correct, the evidence of the contents of the container would not establish the necessary basis for a finding of appellant's guilt."

The court then examined the record and found that there were other, properly admitted tests tying heroin to the glassine envelopes: (1) a field test performed in the apartment showed the tinfoil package contained heroin; (2) a later test of one of the glassine envelopes revealed heroin; and crucially (3) a government chemist's test of traces of powder scraped from the sides of the glassine envelopes also showed heroin. Based on these properly admitted results, the court concluded there was ample evidence to sustain the conviction independent of the challenged common-container test result. Relying on its precedent in United States v. Wanton, the court determined that admission of the container test evidence was not sufficiently prejudicial to require reversal.

On the jury instruction issue, the court recognized the precedent (United States v. Bilotti) criticizing the instruction that "every witness is presumed to speak the truth." After an objection at trial, the judge withdrew that charge and instructed the jury to disregard it. The appellate court held that this withdrawal neutralized the potentially misleading effects of the instruction, referencing Bilotti's admonition that trial courts should refrain from using such a charge because it "serves no useful purpose" and "may in some cases be very misleading."

Holding and Implications

Holding: The judgment of conviction is AFFIRMED.

Implications:

Direct effect: The appellant's conviction for dealing in narcotics under 21 U.S.C. §§ 173 and 174 was upheld by the Second Circuit. The court found that properly admitted evidence (field tests and chemist's tests of traces from the glassine envelopes) provided ample support for the jury's verdict, and any error in admitting the common-container test results was not so prejudicial as to require reversal.
On jury instructions: The appellate court reiterated the criticism of instructing a jury that "every witness is presumed to speak the truth" (as stated in Bilotti) and affirmed that withdrawing such a charge and instructing the jury to disregard it can neutralize possible prejudice.
No new precedent was announced; the court applied existing Second Circuit authority (Wanton and Bilotti) to the circumstances of this case and limited its ruling to the facts and procedural posture presented.

Represented on appeal by Laura Banfield (for the appellant, United States) and Maurice M. McDermott, Asst. U.S. Atty. (for the appellee, Cristobal Gonzales Castro); opinion authored by Circuit Judge Hays.

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UNITED STATES of America, Appellant, v. Cristobal Gonzales CASTRO, Appellee.

HAYS, Circuit Judge:

This is an appeal from a judgment of conviction entered against appellant in the United States District Court for the Southern District of New York, based upon a jury verdict finding him guilty of dealing in narcotics in violation of 21 U.S.C. § 173 and 174. We affirm the conviction.

Appellant was arrested by narcotics agents armed with a search warrant who entered an apartment in which he was found. As the narcotics agents came into the apartment, Castro approached them with his hands in the air saying "I've got it. I will give it to you." He then removed a bundle of glassine envelopes from his trousers and threw it on the floor. One of the agents, picking up the bundle that appellant had discarded, observed that the envelopes contained a white powder. At the same spot on the floor the agent found a tinfoil package also containing a white powder. Appellant was thereupon arrested.

While the agents were still in the apartment where appellant was arrested they tested the tinfoil package. The test showed that the white powder contained heroin. A later test of the contents of one of the glassine envelopes also revealed the presence of heroin.

After these "field-tests" were completed the contents of the tinfoil package and the glassine envelopes were transferred to a common container. A test by a government chemist of the contents of the container showed that heroin was present.

A later test by the government chemist of traces of powder scraped from the sides of the glassine envelopes also showed that the powder contained heroin.

At the trial the court ruled that the tinfoil package was inadmissible because the evidence did not sufficiently show appellant's possession of the package. However, the common container and the results of the test on its contents were introduced over appellant's objection and appellant now assigns this as error. Appellant's contention is that admission of the evidence was prejudicial since the test of the contents of the container could establish only that either the tinfoil package or the glassine envelopes contained heroin, but could not prove that the heroin came from the envelopes rather than from the tinfoil package.

Assuming that the trial court's ruling as to the admissibility of the tinfoil package was correct, the evidence of the contents of the container would not establish the necessary basis for a finding of appellant's guilt. However, the field test and the chemical test of the traces of powder in the glassine envelopes provided ample evidence to sustain appellant's conviction, and we do not consider the admission of the evidence of the test of the contents of the container to be sufficiently prejudicial to require reversal. See United States v. Wanton, 380 F.2d 792 (2d Cir. 1967).

Appellant also assigns as error the charge of the trial judge that "every witness is presumed to speak the truth." In United States v. Bilotti, 380 F.2d 649, 656 (2d Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967), this court said of such a charge that it "serves no useful purpose," and that "it may in some cases be very misleading and the trial courts would best refrain from using it."

In the present case after hearing objection to the charge the court withdrew it and instructed the jury to disregard it. We believe that by this action the possible bad effects of the charge were neutralized.

Affirmed.

UNITED STATES v. CASTRO