292 F2d 499 United States v. E Lee

292 F.2d 499

UNITED STATES of America, Appellee,
Robert E. LEE, Appellant.

No. 416.

Docket 26859.

United States Court of Appeals Second Circuit.

Argued June 21, 1961.

Decided July 10, 1961.

Samuel Sheres, Asst. U. S. Atty., S. D. of New York, New York City (Robert M. Morgenthau, U. S. Atty., and Arnold N. Enker, Asst. U. S. Atty., S. D. of New York, New York City, on the brief), for appellee.

Nathan H. Mitchell, of Chance, Mitchell & Wells, New York City, for appellant.

Before CLARK and SMITH, Circuit Judges, and DAWSON, District Judge.


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Robert E. Lee, convicted and sentenced as a second offender after jury trial in the Southern District of New York, appeals on the ground of error in admission into evidence of oral testimony and transcript of portions of a question and answer statement, of admissions by Lee of narcotic sales. These he claims were prejudicial as bringing before the jury other crimes than the one with which he was charged. The crime charged in the indictment was a sale on February 3, 1959. Lee's statements were made at the time of arrest in November 1959. After being warned of his rights Lee freely admitted sales at about the time charged, but professed to be unable to pinpoint the February 3 date. In these circumstances such questions as "Do you remember on or about that date selling about a half ounce of heroin for $85?" the answer "I have sold a half an ounce. I just don't know what date it was," the question "Did you sell narcotics last February?" the answer "I believe so," and similar admissions were properly in evidence. They were directed specifically to the crime charged, and tended to support the agents' testimony as to the transaction. Reference to other crimes was only incidental, and does not bar the use of the testimony to establish the crime charged. United States v. Barrett et al., 2 Cir., 1960, 280 F.2d 889, 890; United States v. Eury, 2 Cir., 1959, 268 F.2d 517, 520.