388 F.

2d 449

UNITED STATES of America, Appellee,

v.
Richard BELTRAM and Andres Colon, DefendantsAppellants.
No. 158, Docket 31420.

United States Court of Appeals Second Circuit.

Argued Nov. 9, 1967.
Decided Jan. 22, 1968.

Abraham D. Sofaer, Asst. U.S. Atty., (Robert M. Morgenthau, U.S. Atty.,

for the Southern District of New York, Douglas S. Liebhafsky and Pierre
N. Leval, Asst. U.S. Attys., on the brief), for appellee.
Joshua N. Koplovitz, New York City, (Anthony F. Marra, New York
City, on the brief), for appellant Beltram.
Abraham Solomon, New York City, for appellant Colon.
Before LUMBARD, Chief Judge, and MEDINA and HAYS, Circuit
Judges.
HAYS, Circuit Judge:

Richard Beltram and Andres Colon appeal from judgments of conviction for
violations of 26 U.S.C. 4705(a) and 7237(b) by sales of narcotics without
written order on a form issued for the purpose by the Secretary of the Treasury.
We affirm the judgments.

The evidence, taking a view of it most favorable to the government as we are

required to do, United States v. Tutino, 269 F.2d 488 (2d Cir. 1959), establishes
the following:

On August 20, 1964, appellant Beltram approached Scott, an undercover agent

for the narcotics bureau, in a bar, and offered to sell him cocaine and marijuana.
Scott said he would buy a half ounce of cocaine now and, if that proved

satisfactory, he would later buy cocaine in ounce quantities. Beltram and Scott
then went to a nearby grocery store where Beltram made a telephone call. They
then drove to an apartment house on West End Avenue and went up to
apartment 3-A. Beltram opened the front door of the building and the door of
the apartment with keys which he had.
4

Once in the apartment Beltram told Scott that they would have to wait for
about an hour. About an hour later they heard an automobile horn sounded in
the street outside. Beltram looked out the window and then told Scott to go into
the kitchen, adding 'He's here.' Scott went to the kitchen and from there heard
Beltram open the door and greet somebody. Almost immediately thereafter
Beltram brought Scott a glassine envelope containing cocaine and Scott paid
Beltram $250, the price earlier agreed upon. Beltram told Scott that he was
prepared to sell more cocaine and he gave Scott a paper napkin on which he
written a telephone number and instructions as to how to reach him.

Four days later Scott called Beltram and was asked to come again to Beltram's
apartment. At the apartment Scott told Beltram that he wanted to buy an ounce
of cocaine. Beltram said there would be a short wait and collected $500 from
Scott. Beltram then adjusted the venetian blind on a window facing the street,
in such a way as to indicate that he was signalling to a confederate outside. A
few minutes later the bell in the apartment rang. Beltram said that his
'connection' had arrived. Instructing Scott to remain where he was, Beltram
drew a curtain separating the room from a hallway leading to the outer door of
the apartment. However, Scott was able to see a short man come in the front
door and go with Beltram to the far end of the hallway. Beltram then came
back and gave Scott a double glassine envelope containing cocaine.

On the occasion of both of the sales there were two other narcotics agents,
Smith and Raugh, posted outside the apartment house. On the first occasion
they saw Scott and Beltram enter the house and a few minutes later saw Colon
enter the house and then leave. Nobody else entered or left the building from
the time Beltram and Scott went in until Colon left.

On the occasion four days later the agents saw Scott go into the building and
then saw Beltram and Scott inside Beltram's apartment. They saw Beltram
adjust the venetian blind soon after Scott entered the apartment. Colon
thereupon approached the building, went into the vestibule, rang the bell for
Beltram's apartment 3-A, and entered the inner door. The surveilling agents
saw Scott leave the building a few minutes later and thereafter saw Colon
leave. Between the time Scott entered the building and the time Colon left,
nobody else entered the building and only Scott left it.

The indictment contained two counts. The first count charged Beltram with the
sale on August 20; the second count charged both Beltram and Colon with the
later sale.

The appellants were found guilty as charged by Judge MacMahon sitting

without a jury. Beltram was sentenced to five years on each count, the
sentences to run concurrently. Colon, as a second offender, was sentenced to
twelve years.
Grand Jury Testimony

10

Beltram and Colon moved to dismiss the indictment on the ground that the
testimony on the basis of which the indictment was returned was the hearsay
testimony of Smith, one of the surveilling agents, rather than the direct
testimony of Scott.

11

There was no attempt to mislead the grand jury and the members of that jury
must have understood from the character of Smith's testimony that he was not
testifying of his own knowledge as to what went on inside the apartment.

12

This court has never held that an indictment must be dismissed because it was
secured by hearsay testimony. Indeed the authority is to the contrary.

13

'The presentation of hearsay testimony before the grand jury is clearly

permissible, and indictments based thereon are valid indictments under the rule
of Costello v. United States, 350 U.S. 359, (76 S.Ct. 406, 100 L.Ed. 397)
(1956), even though recently the practice has been subjected to judicial
criticism in this circuit. See United States v. Umans, 368 F.2d 725, 730 (2 Cir.
1966), cert. granted, 386 U.S. 940 (87 S.Ct. 975, 17 L.Ed.2d 872) (1967) (cert.
dismissed as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19 L.Ed.2d 255
(U.S., Nov. 6, 1967)) ; United States v. Payton, 363 F.2d 996, 999 (2 Cir.), cert.
denied, 385 U.S. 993, (87 S.Ct. 606, 17 L.Ed.2d 453) (1966).' United States v.
Andrews, 381 F.2d 377 (2d Cir. 1967).

14

The indictment in the present case was returned before the issuance of the
decision in Umans.
The Evidence Against Colon

15

Colon asserts that the evidence against him was insufficient to support his

conviction. We do not agree.

16

The evidence of the surveilling agents as to Colon's entering and leaving the
building at the time when Beltram's supplier arrived and left, together with the
testimony that he was the only person to enter and leave at this time, is
sufficient to establish Colon's guilt, even though Scott could not identify him.
Colon's Sentence as a Second Offender

17

Colon contends that he was improperly sentenced as a second offender because

the court counted as a first conviction a conviction in the United States District
Court for the District of Puerto Rico which was, at that time, a 'legislative
court.' This contention is foreclosed by United States v. Montanez, 371 F.2d 79
(2d Cir.), cert. denied, 389 U.S. 884, 88 S.Ct. 147, 19 L.Ed.2d 181 (1967).

18

Affirmed.
MEDINA, Circuit Judge (dissenting):

19

I dissent. But I do not dispute the fact that there is no constitutional obstacle to
the presentment of a case to the grand jury by means of hearsay evidence. Such
a view is foreclosed by Costello v. United States, 350 U.S. 359, 76 S.Ct. 406,
100 L.Ed. 397 (1956). My point has a double aspect. As the grand jury may
and often does refuse to indict, it seems to me that it is only just and fair to
require the prosecutor at least to warn the grand jury that most or all of the
proofs presented are at second hand. Of even greater significance, in my
opinion, is the evil practice, especially in narcotics cases, of using before the
grand jury only a peripheral witness, who recites in more or less narrative
fashion what other narcotics agents have seen, heard or done. The key witness,
in this case Scott, is not produced; nor is the grand jury told in any intelligible
way that the principal witness to the commission of the crimes has not been
produced. The inevitable consequence of this procedure is to make it
impossible for the defense, by demanding production of the grand jury minutes
at the trial, to use contradictions and misstatements of the principal witness
under oath to impeach him.

20

I remember the days when it was like pulling teeth to get a federal judge to
hand over grand jury minutes to defense counsel for purposes of crossexamination. But those times have passed and, in a more enlightened age, it is
thought more consistent with the accused's right to defend himself to permit his
counsel, generally as a matter of course, at least in this Circuit, to see the grand

jury testimony of trial witnesses for the prosecution and to permit the use on
cross-examination of these witnesses of such parts of the grand jury testimony
as counsel deems to be contradictory. What is the use of such a practice,
established in the cause of truth and justice, if the prosecutor can in effect
return to the old system by the simple expedient of withholding key witnesses
from the grand jury hearing?
21

These narcotics agents are not sacrosanct. The only way to make them mend
their ways is, in the exercise of our supervisory powers, to reverse a few
convictions obtained in this manner.

22

Generally speaking our Court has passed over this particular practice, as does
the majority opinion in this case, by citing Costello and saying that we have
never held that an indictment should be dismissed 'because it was secured by
hearsay testimony.' But in United States v. Umans, 368 F.2d 725 (2d Cir. 1966),
the following was the unanimous view of a panel of this Court:

23

While we are not condemning the procedure used here before the grand jury,
we think it not amiss for us to state that excessive use of hearsay in the
presentation of government cases to grand juries tends to destroy the historical
function of grand juries in assessing the likelihood of prosecutorial success and
tends to destroy the protection from unwarranted prosecutions that grand juries
are supposed to afford to the innocent. Hearsay evidence should only be used
when direct testimony is unavailable or when it is demonstrably inconventient
to summon witnesses able to testify to facts from personal knowledge. 368 F.2d
at page 730.

24

With all due respect for my brothers, I cannot see how this is any test at all. It
surely does not go to the point I am making in this dissent. How is one to know
when the use of hearsay is 'excessive'? In this very case it is claimed that direct
testimony was unavailable and that it was demonstrably inconvenient to
summon Scott as a witness before the grand jury, simply because he had been
working late the night before the case was presented to the grand jury and
because of the limited number of narcotics agents.

25

Moreover, in this case the failure to call Scott to testify before the grand jury
might have brought about a conviction that otherwise would have been an
acquittal. At the trial Scott admitted he had not been able to identify the man
who came into Beltram's room on the night of the second purchase of cocaine.
But, in his recital to the grand jury of what Scott had seen, Smith unequivocally
said that Scott did identify Colon. Had Scott given any such testimony before

the grand jury it would inevitably have been brought out on cross-examination
at the trial, after perusal of the grand jury minutes, and, at the very least, Scott's
credibility would have been impaired, especially as the testimony that he could
and did identify Colon and that he could not and did not identify Colon given
on the two occasions respectively was under oath. On the other hand, had Scott
been produced and had he testified to the grand jury that he was unable to
identify Colon, the grand jury might have refused to indict.
26

While the Supreme Court at first granted certiorari in Umans and then later
dismissed the certiorari as improvidently granted, 389 U.S. 80, 88 S.Ct. 253, 19
L.Ed.2d 255 (Nov. 6, 1967), it may well be that the reason for the dismissal
was that the point was not directly raised in Umans. But it was directly raised
and passed upon by the trial judge in this case.

27

Accordingly, I agree with my brother Friendly's dissent in United States v.

Payton, 363 F.2d 996, 999 ff. (2d Cir.), cert. denied 385 U.S. 993, 87 S.Ct. 606,
17 L.Ed.2d 453 (1966), and would reverse the judgment below as against both
appellants and dismiss the indictment. This would not let appellants go scot
free, as there would be time to reindict them and have their guilt or innocence
passed upon again on a record not tainted with irregularity.