United States v. Joseph Ralph Fiore, 443 F.2d 112, 2d Cir. (1971)
United States v. Joseph Ralph Fiore, 443 F.2d 112, 2d Cir. (1971)
443 F.
2d 112
UNITED STATES of America, Appellee,
v.
Joseph Ralph FIORE, Defendant-Appellant.
No. 869.
Docket 35229.
United States Court of Appeals, Second Circuit.
Argued April 23, 1971.
Decided May 17, 1971.
Joseph W. Ryan, Jr., Asst. U. S. Atty. (Edward R. Neaher, U. S. Atty., E.
D. New York, and David G. Trager, Asst. U. S. Atty., of counsel), for
appellee.
Henry K. Chapman, New York City for defendant-appellant.
Before FRIENDLY, ANDERSON and FEINBERG, Circuit Judges.
FRIENDLY, Circuit Judge:
After a jury trial in the District Court for the Eastern District of New York,
Joseph Ralph Fiore was convicted on all counts of a four-count indictment
charging him with sales of heroin on December 3, 1969, and January 12, 1970,
in violation of 21 U.S.C. 174 and 26 U.S.C. 4704(a).
Late in November 1969, Thomas Bennett, Jr., a confidential informant
apparently used in previous narcotics investigations, was employed by the
Government to aid in the investigation of the activities of Fiore, proprietor of a
small store in the Astoria section of Queens, N. Y. There was extensive trial
testimony by narcotics agents that on December 3, 1969, Bennett entered the
store with $1,000 in Government funds and no narcotics on his person and
ultimately emerged without the $1,000 but with a white paper bag including,
among other things, a plastic bag containing about two-thirds of an ounce of
heroin. There was also a recorded (and subsequently transcribed) telephone
conversation between Bennett and Fiore, initiated on the next day by one of the
agents, relating (at least inferentially1 to a shortage in the quantity of heroin
delivered. On January 12, 1970, Bennett again entered the store with $1,000 in
Government funds and with no narcotics on his person. Once more he emerged
without the money, this time bearing a magazine bound with Scotch tape
around the edges, which contained a plastic bag filled with heroin
approximately the same quantity as before.
3
Bennett testified before the grand jury concerning his conversations with Fiore
and his purchases within the store. Thereafter he was sentenced by a New York
State court to a term in Clinton State Prison. Shortly before the trial the State
released him temporarily to the custody of the federal authorities, and he went
over his proposed testimony with one of the agents and the prosecutor.
After the jury had been selected, the prosecutor informed the judge, out of the
jury's presence, that Bennett had experienced a sea change and was refusing "to
even physically cooperate in coming up to this courtroom." Testimony by one
of the agents consumed the balance of the day and part of the next. Bennett's
attitude had not changed. He was forcibly brought into the courtroom by two
marshals and two narcotics agents, the jury having been excused, and the judge
persuaded him to sit in the witness chair. After the jury's return, the judge asked
Bennett to raise his right hand and be sworn. Bennett answered that he refused
to testify. After an inconclusive colloquy at sidebar,2 subsequent to which
Bennett again refused to be sworn, the court instructed the prosecutor to
"proceed." Preliminary questions were met with refusals to answer or
statements of ignorance or forgetfulness why he (Bennett) had been brought to
court. When the prosecutor asked permission to examine Bennett "as a hostile,
reluctant witness," defense counsel said "the question of reluctance is not the
issue." The court then ruled that Bennett "can now be questioned as a hostile
witness." The prosecutor proceeded to ask Bennett whether he had testified
before the grand jury, and Bennett said "I don't remember." There followed a
protracted pas de deux, with the prosecutor reading portions of Bennett's grand
jury testimony, framed by the questions, "Were you asked the following
questions and did you give the following answers?" and "Were you asked those
questions and did you give those answers?," and with Bennett almost invariably
offering such responses as "I might have," "I don't recall," "I don't know
whether I did or not," or "I refuse to answer." No pertinent objections were
made by defense counsel. After a luncheon recess Bennett said he would like to
get a lawyer and indicated that he wished an "adjournment" for that purpose.
The court decided to proceed and asked Bennett "to please cooperate to the
extent of being asked questions and make whatever answers you want,"
assuring him that it would "protect" him. The reading of questions and answers
before the grand jury resumed, with results similar to those already described.
At the end of this, defense counsel said, "I have no questions on cross."
5
On the next day, after testimony by another agent, the Government called the
reporter who had taken down the grand jury testimony in order to authenticate
the questions and answers. Again there was no pertinent objection, and the
Government rested. Defense counsel then moved to strike all of Bennett's
testimony on the ground that he had not been sworn. The judge denied this, not
as having been made too late but as lacking merit. In its charge the court
instructed that if the jury found Bennett to have been a recalcitrant witness, his
grand jury testimony might be used as affirmative evidence of the facts stated;
to this defense counsel excepted.
If prompt objection had been taken, it would have been clear error to allow
Bennett's grand jury testimony to be received as evidence indeed, to have
allowed the prosecutor to ask him any questions at all. Although F.R.Cr.P. 26
does not expressly require an oath, it refers the admissibility of evidence and
the competency of witnesses to "the principles of the common law as they may
be interpreted by the courts of the United States in the light of reason and
experience." There is no room for doubt what those principles require in this
context. Wigmore instructs that "for all testimonial statements made in court
the oath is a requisite," 6 Evidence 1824 (3d ed. 1940) (emphasis in original).
See also Revised Draft of Proposed Rules of Evidence for the United States
Courts and Magistrates, Rule 603, reprinted in 51 F.R.D. at 385.
The Government's argument is not that anything said by Bennett while in the
witness chair was receivable indeed, he said nothing that was of any value to
its case but that, under the principle enunciated in United States v. De Sisto,
329 F.2d 929, 933-934 (2 Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12
L.Ed.2d 747 (1964), and followed in United States v. Insana, 423 F. 2d 1165,
1170 (2 Cir.), cert. denied, 400 U.S. 841, 91 S.Ct. 83, 27 L.Ed.2d 76 (1970) and
United States v. Mingoia, 424 F.2d 710, 712-713 (2 Cir. 1970), Bennett's
presence rendered admissible his previous sworn testimony before the grand
jury. The reliance is misplaced. In these cases the witness had been sworn and
was available for meaningful cross-examination on the issue whether his
present alleged lack of recollection of the defendant's participation in the crime
or his previous sworn testimony to the contrary was the truth indeed,
although this is not decisive, in De Sisto, the alleged lack of specific
recollection had been brought out in cross-examination itself. Similarly Rule
801 of the proposed Federal Rules of Evidence, in defining certain prior
statements as not hearsay, limits the definition to cases where "the declarant
testifies at the trial or hearing and is subject to cross-examination concerning
the statement," 51 F.R.D. at 413, see also at 415, 416. Our decisions, and the
considerably broader proposal in Rule 801, rest on Wigmore's view that "The
whole purpose of the Hearsay rule has been already satisfied [because] the
witness is present and subject to cross-examination [and] [t]here is ample
opportunity to test him as to the basis for his former statement." 3 Evidence
1018 (3d ed. 1940), quoted in California v. Green, 399 U.S. 149, 155, 90 S.Ct.
1930, 26 L.Ed.2d 489 (1970). Here Bennett was not subject to crossexamination by the defendant, both because he had refused to take the oath and
thus was not a witness at all and because he had made it evident that he would
refuse to give testimony of any sort. Under such circumstances the admission of
his grand jury testimony would appear to offend not only the hearsay rule, even
in the liberalized form adopted by this circuit, see 3A Wigmore, Evidence
1018 at 997-998 (Chadbourn rev. 1970),3 but the confrontation clause of the
Sixth Amendment as well, Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074,
13 L.Ed.2d 934 (1965).
8
The Government says that, even if this be so, we should nevertheless affirm
because of the failure to make appropriate objection until the Government had
rested its case.4 If we were faced only with an omission to take the oath and
Bennett had been cross-examined or there was any indication that he could
have been, the argument would have much in its favor, see Wilcoxon v. United
States, 231 F.2d 384, 387 (10 Cir.), cert. denied, 351 U.S. 943, 76 S.Ct. 834,
100 L.Ed. 1469 (1956). But those were not the facts here. Even with the facts
as they were, we would hardly have reversed if the judge had sustained the
belated objection when it was made, and had instructed the jury to disregard
the grand jury testimony; despite the practical impossibility of the jury's doing
so, this would have been proper in light of counsel's failure to make timely
objection. But here, having been apprised of the objection, sound as we hold it
to have been, the judge overruled it and told the jury it might consider the
testimony. Although we can understand his sympathy with the prosecution's
unexpected predicament, we cannot square his rulings either with recognized
principles of evidence or with the Sixth Amendment's command.
While we are thus constrained to reverse the conviction, we refuse to direct
dismissal of the indictment, as Fiore requests. We are by no means certain that,
in the absence of any significant evidence by the defense, the testimony of the
agents was not sufficient to take the case to the jury. Furthermore, no one can
be sure that Bennett's attitude at a second trial will be the same as at the first.
The record does not disclose the length of his New York sentence; as he
approaches the end of it or if he is now or soon becomes eligible for parole, the
prospect of a federal sentence for contempt may have a more chastening effect.
If this does not happen, it is not beyond possibility that the Government may be
able to establish that Bennett's recalcitrance was due to "the suggestion,
procurement or act of the accused,"5 see Motes v. United States, 178 U.S. 458,
471-472, 20 S.Ct. 993, 998, 44 L.Ed. 1150 (1900) in which event, as
recognized in Douglas v. Alabama, supra, 380 U.S. at 420, 85 S.Ct. 1074, a
different rule would apply. If ever there was a case where resort to the principle
of Bryan v. United States, 338 U.S. 552, 560, 70 S.Ct. 317, 94 L.Ed. 335
(1950), is appropriate, this is it.
10
The judgment of conviction is reversed and a new trial ordered.
Notes:
1
The conversation ostensibly concerned a shortage of shoe polish. There was
testimony that the bag of heroin was contained inside a shoe-polish carton, one
of the items with which Bennett emerged upon leaving Fiore's store
After the judge had requested Bennett to take the oath and told him he could
refuse to testify after being sworn, defense counsel asked to "make a
suggestion." This was that "[w]e are treading on dangerous ground" and "[y]ou
[the judge] may be exceeding your authority to have him take the oath." So far
as we can gather anything from this, it is that counsel was making a suggestion
against the judge's threatening to place Bennett in contempt for what might be a
legitimate exercise of the privilege against self-incrimination
If Bennett's testimony had been given at a prior trial, where he would have been
subject to cross-examination, rather than only before the grand jury, where he
was not, his conduct at the instant trial might have rendered him "unavailable,"
cf. 5 Wigmore, Evidence 1042, 4 Wigmore, Evidence 1317(b) (3d ed.
1940), and his testimony thus admissible
We cannot take the colloquy recited in fn. 2 as an adequate objection
The Government does not suggest that if defense counsel had made earlier
objection, it could have adduced proof of this at the trial
