United States v. Richard Beltram and Andres Colon , 388 F.2d 449 ( 1968 )

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.

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 had 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

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 sur-veilling agents, rather than the direct testimony of Scott.

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.

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.

“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).

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

The Evidence Against Colon

Colon asserts that the evidence against him was insufficient to support his conviction. We do not agree.

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

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).

Affirmed.