DIMOCK, District Judge.
Angelo Moret and his wife Augustine appeal from judgments of conviction entered on February 8, 1963 in the United States District Court for the Southern District of New York after a five day trial before Judge Edmund L. Palmieri and a jury. The indictment charged that appellants received, concealed, sold and facilitated the transportation, concealment and sale of illegally imported heroin, in violation of Title 21 of the United States Code, Sections 173-174. Both appellants were found guilty and each was sentenced to the mandatory minimum of five years in prison.
The evidence against appellant Angelo Moret was overwhelming. He was identified by the buying agent as the man who sold him for $325 white powder which was represented and later proved to be heroin. Points urged with respect to alleged inconsistencies in the testimony or reports of the narcotics agents and with respect to the fact that the Government did not call the informer are without merit.
The evidence with respect to Augustine Moret presents a different picture.
The purchase was made on the second floor of 68 East 112th Street in the Borough of Manhattan, City of New York. That is on the south side of 112th Street four doors west of Park Avenue. Two narcotics agents had the entrance under surveillance from an automobile parked on the west side of Park Avenue just north of its intersection with 112th Street. The lot on the northwest corner of Park Avenue and 112th Street was vacant and surrounded by a wire fence. The agents with the aid of binoculars were looking at the entrance to number 68 through the windshield of the car and the wire fence. There was testimony that the entrance was from 60 to 70 feet away. Their testimony is summarized in the following paragraph.
The Morets drove up in a white Chrysler car from the west and passed the doorway of number 68 and stopped. They got out, Augustine from the right and Angelo from the left. She walked toward the entrance of number 68 and he followed about a foot behind and to her left. She got up on the step of number 68, stopped a moment and took something from the front of her person with her left hand. The backs of both Morets were turned to the agents so that they could see nothing in front of Augustine. She then handed something with her left hand to Angelo and he put it in his right trouser pocket. This was consistently described as a flat white package. One agent estimated its size as 3% x 3% inches and the other 4 by 4 inches. When one of the agents was asked “Could you tell whether the package was translucent, transparent, or [889]*889opaque” he replied “No; all I could tell was it was white in appearance.”
There was testimony by a third agent that he made the purchase inside of number 68 immediately after the entrance of Angelo and Augustine and that Angelo took from a trouser pocket, which the witness said he believed to have been the right one, a double glassine envelope, which the witness said he believed to have been one inch by one inch and could have been held in the palm of the hand. This, the witness said, contained a white powder. On weighing and analysis this proved to be a little more than half an ounce of heroin.
The court charged the jury that the evidence as to Augustine stopped when she got inside the building and that she must be found guilty or innocent on the basis of their findings with respect to what happened in front of the building.
The case against her thus rested on the identity of the something that she was said to have given Angelo and the something which Angelo extracted from his trouser pocket.
Augustine took the stand and denied the whole story.
Her counsel moved for judgment of acquittal at the end of all the evidence and the motion was denied.
While the evidence of identity was weak, it was strong enough to support the verdict. A double glassine envelope an inch square containing a half ounce ■of heroin would not much resemble a white package 8% or 4 inches square when seen through binoculars at 60 feet. Nevertheless, to support the verdict, we are not forced to conclude that the package and the envelope were the same. Consistently with the testimony, the envelope may have been delivered by Augustine to Angelo with the package or inside of the package and may have been put by Angelo in his righthand trouser pocket and then by him taken from that pocket. The jury might have found that the male defendant with a single motion took the glassine envelope from the white package and from his trouser pocket.
The court’s charge did not restrict the jury to the theory that the white package and the glassine envelope were identical. Indeed, at no point did it submit that question to them.
On the subject of the testimony of the receipt of the white package and the delivery of a glassine envelope, the court said:
“The term ‘inference’ becomes an extremely important issue in this case, particularly with respect to the defendant Augustine Moret. During a recess I had the stenographer read me a part of the opening address that was made to you in this case by Mr. Gold. Mr. Gold said in his opening that the government’s evidence would show as to Augustine Moret that she removed from her bosom a glassine envelope. Now, the proof was not that, and it would have been more accurate for Mr. Gold to have said the proof will show that Augustine Moret removed from some place on the front and upper part of her person a white package which I believe you will be justified in inferring was a glassine envelope. You see the difference between evidence of something and a request that you infer something from something that was proved.
“In this case the evidence of the agents who observed Augustine Moret in the vicinity of the entrance to 68 East 112th Street — and I will have more to say about that in a moment — was that they saw a small white, flat package. It was somewhat differently described by each agent, and there was no evidence by them, no direct evidence, that what they saw was a glassine envelope. But the government in closing, Mr. Gold in summing up his case, asked you in effect to find that what Augustine Moret did on that day was that she handed over a glassine envelope containing narcotic drugs and knowing that it did contain narcotic drugs and for the [890]*890purpose of assisting her husband to take that into the building.”
Though the court in a supplemental charge said, “[I]f you believe that a small white package was taken out of the right trouser pocket and that that package which was taken out was the package that she gave her husband, according to the government’s evidence you would be justified in making those inferences,” the reference to the item taken out of the pocket as “a small white package” could not have been understood to limit the jury to a finding that the item produced by Angelo was the flat white package delivered to him by Augustine. That portion of the supplemental charge was preceded by three references to the purchaser’s testimony that what was taken out of the right trouser pocket was a glassine envelope.
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DIMOCK, District Judge.
Angelo Moret and his wife Augustine appeal from judgments of conviction entered on February 8, 1963 in the United States District Court for the Southern District of New York after a five day trial before Judge Edmund L. Palmieri and a jury. The indictment charged that appellants received, concealed, sold and facilitated the transportation, concealment and sale of illegally imported heroin, in violation of Title 21 of the United States Code, Sections 173-174. Both appellants were found guilty and each was sentenced to the mandatory minimum of five years in prison.
The evidence against appellant Angelo Moret was overwhelming. He was identified by the buying agent as the man who sold him for $325 white powder which was represented and later proved to be heroin. Points urged with respect to alleged inconsistencies in the testimony or reports of the narcotics agents and with respect to the fact that the Government did not call the informer are without merit.
The evidence with respect to Augustine Moret presents a different picture.
The purchase was made on the second floor of 68 East 112th Street in the Borough of Manhattan, City of New York. That is on the south side of 112th Street four doors west of Park Avenue. Two narcotics agents had the entrance under surveillance from an automobile parked on the west side of Park Avenue just north of its intersection with 112th Street. The lot on the northwest corner of Park Avenue and 112th Street was vacant and surrounded by a wire fence. The agents with the aid of binoculars were looking at the entrance to number 68 through the windshield of the car and the wire fence. There was testimony that the entrance was from 60 to 70 feet away. Their testimony is summarized in the following paragraph.
The Morets drove up in a white Chrysler car from the west and passed the doorway of number 68 and stopped. They got out, Augustine from the right and Angelo from the left. She walked toward the entrance of number 68 and he followed about a foot behind and to her left. She got up on the step of number 68, stopped a moment and took something from the front of her person with her left hand. The backs of both Morets were turned to the agents so that they could see nothing in front of Augustine. She then handed something with her left hand to Angelo and he put it in his right trouser pocket. This was consistently described as a flat white package. One agent estimated its size as 3% x 3% inches and the other 4 by 4 inches. When one of the agents was asked “Could you tell whether the package was translucent, transparent, or [889]*889opaque” he replied “No; all I could tell was it was white in appearance.”
There was testimony by a third agent that he made the purchase inside of number 68 immediately after the entrance of Angelo and Augustine and that Angelo took from a trouser pocket, which the witness said he believed to have been the right one, a double glassine envelope, which the witness said he believed to have been one inch by one inch and could have been held in the palm of the hand. This, the witness said, contained a white powder. On weighing and analysis this proved to be a little more than half an ounce of heroin.
The court charged the jury that the evidence as to Augustine stopped when she got inside the building and that she must be found guilty or innocent on the basis of their findings with respect to what happened in front of the building.
The case against her thus rested on the identity of the something that she was said to have given Angelo and the something which Angelo extracted from his trouser pocket.
Augustine took the stand and denied the whole story.
Her counsel moved for judgment of acquittal at the end of all the evidence and the motion was denied.
While the evidence of identity was weak, it was strong enough to support the verdict. A double glassine envelope an inch square containing a half ounce ■of heroin would not much resemble a white package 8% or 4 inches square when seen through binoculars at 60 feet. Nevertheless, to support the verdict, we are not forced to conclude that the package and the envelope were the same. Consistently with the testimony, the envelope may have been delivered by Augustine to Angelo with the package or inside of the package and may have been put by Angelo in his righthand trouser pocket and then by him taken from that pocket. The jury might have found that the male defendant with a single motion took the glassine envelope from the white package and from his trouser pocket.
The court’s charge did not restrict the jury to the theory that the white package and the glassine envelope were identical. Indeed, at no point did it submit that question to them.
On the subject of the testimony of the receipt of the white package and the delivery of a glassine envelope, the court said:
“The term ‘inference’ becomes an extremely important issue in this case, particularly with respect to the defendant Augustine Moret. During a recess I had the stenographer read me a part of the opening address that was made to you in this case by Mr. Gold. Mr. Gold said in his opening that the government’s evidence would show as to Augustine Moret that she removed from her bosom a glassine envelope. Now, the proof was not that, and it would have been more accurate for Mr. Gold to have said the proof will show that Augustine Moret removed from some place on the front and upper part of her person a white package which I believe you will be justified in inferring was a glassine envelope. You see the difference between evidence of something and a request that you infer something from something that was proved.
“In this case the evidence of the agents who observed Augustine Moret in the vicinity of the entrance to 68 East 112th Street — and I will have more to say about that in a moment — was that they saw a small white, flat package. It was somewhat differently described by each agent, and there was no evidence by them, no direct evidence, that what they saw was a glassine envelope. But the government in closing, Mr. Gold in summing up his case, asked you in effect to find that what Augustine Moret did on that day was that she handed over a glassine envelope containing narcotic drugs and knowing that it did contain narcotic drugs and for the [890]*890purpose of assisting her husband to take that into the building.”
Though the court in a supplemental charge said, “[I]f you believe that a small white package was taken out of the right trouser pocket and that that package which was taken out was the package that she gave her husband, according to the government’s evidence you would be justified in making those inferences,” the reference to the item taken out of the pocket as “a small white package” could not have been understood to limit the jury to a finding that the item produced by Angelo was the flat white package delivered to him by Augustine. That portion of the supplemental charge was preceded by three references to the purchaser’s testimony that what was taken out of the right trouser pocket was a glassine envelope.
After the jurors had deliberated for about two hours they sent out the following note: “In reference to Mrs Moret, on what basis is the jury to decide her guilt or innocence? Does she have to have knowledge that she was carrying narcotics?” The judge, in answer, instructed the jury on the law and then, after saying “The government’s evidence in this ease against Augustine Moret is in substance as follows,” summarized the government’s testimony. He closed by saying that he thought that he had reviewed all of the evidence that could be said to pertain to guilt or innocence. He had not, however, referred to the fact that Augustine had taken the stand and made a categorical denial of being present on any occasion such as was the subject of the testimony. After the jury had retired, counsel excepted to the supplemental charge on the ground that the judge should have reread the original charge instead of giving additional instructions.
After the verdict counsel for Augustine moved to set it aside on the ground, as stated, “that your Honor stressed only the testimony upon that application of the government and paid no reference or made no reference to testimony of the female defendant with relation to the testimony which your Honor spoke oí pertaining to the government agents.”
The motion was denied. The denial' was proper since there had been no exception to the supplemental charge on the ground assigned in the motion. Rule-51, F.R.Crim.P.
A contention that the trial judge-should not have admitted two certain-pairs of binoculars in evidence is without substance. According to the testimony two pairs were used. One was-from the pool maintained by the local, office of the Bureau of Narcotics. The-other was the property of one of the agents. There was testimony as to one-of the pairs that were admitted that all of the binoculars in the pool were of the-same type and power. As to the other-pair that was admitted the testimony was that the pair belonging to the agent had been lost but that the pair admitted" was identical with it. The jury called-for the binoculars during their deliberations. The court had carefully instructed the jury that the binoculars were not. the ones which had been used and that, they were not offered to show that they were in the same condition as the ones-that were used “because obviously there-is no testimony that would support the claim that they are in exactly the same-condition.” He added, “It is solely as to-general size, structure, shape and capacity.”
We reject counsel’s argument that, in» a criminal case such as this, binoculars-which are sworn to be of the same capacity as those used are not admissible-as demonstrative evidence unless sworn also to be in the same condition.
The convictions are affirmed.