United States v. Pagano

Second Circuit

United States v. Pagano

207 F.2d 884, 1953 U.S. App. LEXIS 2990

CourtCourt of Appeals for the Second Circuit

DecidedNovember 19, 1953

Docket47, Docket 22724

StatusPublished

Cited by13 cases

This text of 207 F.2d 884 (United States v. Pagano) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Pagano, 207 F.2d 884, 1953 U.S. App. LEXIS 2990 (2d Cir. 1953).

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Opinion

PER CURIAM.

The appellant was convicted by a jury after trial on an indictment charging the sale of heroin in violation of Title 21 U.S.C.A. §§ 173-174. He was admittedly a second offender; was sentenced to imprisonment as such; and has since been serving that sentence, a small fine having been imposed and remitted.

The denial of appellant’s motion for a jury view of the premises, where, according to the testimony of a narcotics agent the purchaser of the heroin handed money in payment for it to the appellant was without error. It was a matter of discretion reviewable only for abuse of that. Le Prell v. United States, 5 Cir., 192 F.2d 132; Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375; Massenberg v. United States, 4 Cir., 19 F.2d 62. Here no abuse was shown. The conditions about which the witness testified were well enough shown by photographs of the premises to enable the jury to determine whether he was in a position to have seen money passed from where he said he did.

Dean who made the purchase was acting as a decoy and was shown to have been a dope addict with a criminal record. His testimony was an essential part of the government’s case and the court was requested to charge that it “should be examined with much greater scrutiny than that of an ordinary witness.” The court did not use that language but charged the jury that his interest and criminal record should be taken into consideration in passing upon his credibility and in giving his evidence “such weight as you think it deserves.” Though it might often serve a good purpose to caution a jury to give “greater scrutiny” to testimony of such a witness cautionary language may otherwise be adequate. Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442; United States v. Becker, 2 Cir., 62 F.2d 1007, 1009; Wainer v. United States, 7 Cir., 82 F.2d 305, affirmed 299 U.S. 92, 57 S.Ct. 79, 81 L.Ed. 58. Here it was. Nor was the refusal to charge as to “entrapment” erroneous. The defense was a denial that the respondent had sold any heroin at all not that he had been entrapped into making a sale. And of course the appellant was not entitled to a charge that the testimony of the narcotics agent was incredible as a matter of law.

Judgment affirmed.

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PER CURIAM.

The appellant was convicted by a jury after trial on an indictment charging the sale of heroin in violation of Title 21 U.S.C.A. §§ 173-174. He was admittedly a second offender; was sentenced to imprisonment as such; and has since been serving that sentence, a small fine having been imposed and remitted.

The denial of appellant’s motion for a jury view of the premises, where, according to the testimony of a narcotics agent the purchaser of the heroin handed money in payment for it to the appellant was without error. It was a matter of discretion reviewable only for abuse of that. Le Prell v. United States, 5 Cir., 192 F.2d 132; Neufield v. United States, 73 App.D.C. 174, 118 F.2d 375; Massenberg v. United States, 4 Cir., 19 F.2d 62. Here no abuse was shown. The conditions about which the witness testified were well enough shown by photographs of the premises to enable the jury to determine whether he was in a position to have seen money passed from where he said he did.

Dean who made the purchase was acting as a decoy and was shown to have been a dope addict with a criminal record. His testimony was an essential part of the government’s case and the court was requested to charge that it “should be examined with much greater scrutiny than that of an ordinary witness.” The court did not use that language but charged the jury that his interest and criminal record should be taken into consideration in passing upon his credibility and in giving his evidence “such weight as you think it deserves.” Though it might often serve a good purpose to caution a jury to give “greater scrutiny” to testimony of such a witness cautionary language may otherwise be adequate. Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442; United States v. Becker, 2 Cir., 62 F.2d 1007, 1009; Wainer v. United States, 7 Cir., 82 F.2d 305, affirmed 299 U.S. 92, 57 S.Ct. 79, 81 L.Ed. 58. Here it was. Nor was the refusal to charge as to “entrapment” erroneous. The defense was a denial that the respondent had sold any heroin at all not that he had been entrapped into making a sale. And of course the appellant was not entitled to a charge that the testimony of the narcotics agent was incredible as a matter of law.

Judgment affirmed.

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207 F.2d 884, 1953 U.S. App. LEXIS 2990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-pagano-ca2-1953.

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