United States v. Anthony Acarino, 408 F.2d 512, 2d Cir. (1969)
United States v. Anthony Acarino, 408 F.2d 512, 2d Cir. (1969)
United States v. Anthony Acarino, 408 F.2d 512, 2d Cir. (1969)
2d 512
Anthony Acarino appeals from a judgment of conviction after a jury trial and
from denial of a motion for a new trial by Jacob Mishler, J., in the United States
District Court for the Eastern District of New York. Appellant was convicted
on one count of concealing heroin in violation of 21 U.S.C. 174 and one
count of purchasing heroin in violation of 26 U.S.C. 4704(a), and was
sentenced to ten years on each count, sentences to run concurrently. In seeking
reversal, appellant claims that admission of crucial evidence against him was
improper because it was seized after an arrest not based on probable cause, that
the prosecutor suppressed material evidence, and that the trial judge
erroneously instructed the jury on the meaning of reasonable doubt. We will
consider these claims in turn.
a particular recipient. The information conveyed to the agent here was more
specific than that referred to in Aguilar, in which the officers' affidavit recited
only that they:
4
have received reliable information from a credible person and do believe that
heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia
are being kept at the above described premises for the purpose of sale and use
contrary to the provisions of the law.
378 U.S. at 109, 84 S.Ct. at 1511. Cf. United States ex rel. Cunningham v.
Follette, 397 F.2d 143, 145 (2d Cir. 1968); United States v. Soyka, 394 F.2d
443, 453 (2d Cir. 1968) (in banc). In addition, the informer here, as in Draper v.
United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), gave the
agent a precise prediction of a crime about to occur, unlike Spinelli where the
information was a more generalized description of criminal activity.4
Moreover, agent Telb testified that the informer had said that he "personally
knew" that the described delivery was to be made. This emphasis, along with
the detailed nature of the information given, suggests that the informer was
disclosing firsthand knowledge, rather than a "`suspicion,' `belief' or `mere
conclusion,'" Aguilar, 378 U.S. at 114, 84 S.Ct. at 1514, or "a casual rumor
circulating in the underworld or an accusation based merely on an individual's
general reputation," Spinelli, 393 U.S. at 416, 89 S.Ct. at 589. Finally, in
Spinelli, not only was no statement made as to the source of the informer's
information but no reason was given for the agent's assertion that the informant
was generally reliable, a fact conceded here. Therefore, we do not find
impressive the argument that Aguilar and Spinelli require us to reverse this
conviction.
However, as in Cunningham and Soyka, supra, we need not decide whether the
informer's report, standing alone, would have constituted probable cause for the
arrest. For it is soundly established that an informer's report which itself fails to
establish probable cause may be sufficiently corroborated by independent
observation of a suspect's conduct, if the latter tends to confirm the information
in the report or otherwise to support a conclusion that the suspect is engaged in
committing a crime. See, e. g., McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056,
18 L.Ed.2d 62 (1967), as construed by Spinelli, 393 U.S. at 419 n. 7, 89 S.Ct. at
590; Draper v. United States, supra; United States ex rel. Cunningham v.
Follette, supra; United States v. Soyka, supra; United States v. Repetti, 364
F.2d 54 (2d Cir. 1966). In the present case, the credibility of the informer's
report was reinforced by appellant's conduct both before and after the
informer's urgent telephone call. Before it was received, the agents'
observations of appellant receiving money from a known narcotics violator,
The prosecuting attorney was correct in his apparent assumption that such
evidence of misconduct as an indictment is not normally admissible for
impeachment purposes. See United States v. Bowe, 360 F.2d 1, 14-15 (2d Cir.),
cert. denied, 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966). Appellant,
however, argues that the Government "built up" Bishop's credibility by eliciting
the various "positions of trust and responsibility" he had held, a stratagem
which the trial judge, had he known of the pending indictments, might not have
allowed. This "build-up" consisted of six questions,6 the answers to which
indicated that Bishop had been employed by the Federal Bureau of Narcotics
for about three years, was thereafter an investigator for the New York
Buildings Department, and was presently an insurance adjuster. Appellant
contends that the resulting impression of unblemished respectability was
particularly unfair because Bishop, the agent who allegedly found the packet of
narcotics, was the crucial government witness, and the defense claimed that he
had in fact planted the packet.
Failure to appreciate the use to which the defense could place evidence in the
prosecution's hands * * * must happen to the most scrupulous prosecutors and *
* * the problems of the courts and the wider interests of society unite to require
a substantially higher probability that disclosure of the evidence to the defense
would have altered the result. To invalidate convictions in such cases because a
combing of the prosecutors' files after the trial has disclosed evidence possibly
useful to the defense but not likely to have changed the verdict would create
unbearable burdens and uncertainties.
11
United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968). We do not express
approval of the decision of the assistant not to inform the court and the defense
of his discovery that a key witness was under indictment. This appeal itself
emphasizes the proposition that it would have been wiser to disclose such
evidence, regardless of the probability that it might be inadmissible. Here,
however, where the attorney acted in good faith and the undisclosed evidence
had minimal probability of affecting the result of the trial, there is no
justification for ordering a new trial. See United States v. Keogh, supra.
Accordingly, we affirm the decision of the district judge on that motion.
13
The first complaint is that the judge never told the jury that "a reasonable doubt
is a doubt based on reason which arises from the evidence or lack of evidence."
The claim is simply unjustified. Judge Mishler instructed the jury that
reasonable doubt "is based upon the evidence in the case," and must be based
"on the case, the record" rather than on "some emotion" or "sympathy, bias or
prejudice." It is true that the judge did not use the exact words appellant now
suggests, although he probably would have had the request been timely made.
But there is nothing talismanic about appellant's phrasing. The substance of
what he now seeks was imparted to the jurors.
14
Appellant's next point is based on the judge's instruction to the jurors that: "You
must be convinced to a moral certainty as to the guilt of the defendant before
you may find him guilty." (Emphasis added.) In United States v. Byrd, 352
F.2d 570, 575 (2d Cir. 1965), we considered an instruction that reasonable
doubt "is a doubt to a moral certainty"; we disapproved of it because it tended
to create "more confusion than light." However, that type of conjunction of two
antithetical terms, "doubt" and "certainty," did not occur here. In United States
v. Johnson, 343 F.2d 5, 6 (2d Cir. 1965), we reversed a conviction because the
judge told "the jury to convict if it arrive[d] at a stage where it is morally
convinced of guilt." We felt the instruction was:
15
16
17
Finally, Judge Mishler stated that: "Proof beyond a reasonable doubt is such as
you would be willing to rely on in the most important of your affairs."
Appellant argues that the judge should have used the more familiar "hesitate to
act" test; e. g., "a reasonable doubt is not a vague, speculative, imaginary doubt
but such a doubt as would cause prudent men to hesitate before acting in
matters of importance to themselves." United States v. Johnson, supra, 343
F.2d at 6. Following the Supreme Court's lead in Holland v. United States, 348
U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150 (1954), we have often suggested use
of the latter concept, e. g., United States v. Bilotti, 380 F.2d 649, 654 (2d Cir.),
cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967); United States
v. Nuccio, 373 F.2d 168, 174-175 (2d Cir.), cert. denied, 387 U.S. 906, 87 S.Ct.
1688, 18 L.Ed.2d 623 (1967). We do so again, reiterating what we said in
Nuccio: "the `hesitate' language makes the point considerably better." 373 F.2d
Judgment affirmed.
Notes:
*
Hughs testified that Bishop said "I found it" or "here is the stuff" and held up
something in his hand. Similarly, Telb testified that Bishop said "I found the
stuff" and had a shiny package in his hand
Although neither party has mentioned it, apparently the governing statute is 26
U.S.C. 7607(2), which provides that agents of the Bureau of Narcotics may:
make arrests without warrant for violations of any law of the United States
relating to narcotic drugs * * * where the violation is committed in the presence
of the person making the arrest or where such person has reasonable grounds to
believe that the person to be arrested has committed or is committing such
violation.
"Reasonable grounds" means substantially the same as "probable cause." See
Draper v. United States, 358 U.S. 307, 310 n. 3, 79 S.Ct. 329, 3 L.Ed.2d 327
(1959).
TheSpinelli affidavit alleged that the FBI "has been informed by a confidential
reliable informant that William Spinelli is operating a handbook and accepting
wagers and disseminating wagering information by means of the telephones
which have been assigned the numbers WYdown 4-0029 and WYdown 40136." 393 U.S. at 414, 89 S.Ct. at 588.
Although the assistant had heard, prior to the trial, that Bishop was in some
kind of difficulty regarding the sale of a stolen car, he was apparently unaware
of the indictments
Three other agents testified at trial to substantially the same series of events as
did Bishop. The trial judge found that the "proof of guilt was overwhelming,"
and that the testimony of the defendant, who took the stand in his own behalf,
was incredible