363 F2d 856 United States v. Booker

363 F.2d 856

UNITED STATES of America, Appellee,
Joseph BOOKER, Appellant.

No. 457, Docket 30283.

United States Court of Appeals Second Circuit.

Argued June 16, 1966.
Decided July 18, 1966.

Joshua N. Koplovitz, New York City (Anthony F. Marra, New York City, on the brief), for appellant.

Robert L. King, Asst. U.S. Atty. for Southern Dist. of New York (Robert M. Morgenthau, U.S. Atty., and John S. Allee, Asst. U.S. Atty., Southern Dist. of New York, on the brief), for appellee.

Before HAYS, ANDERSON and FEINBERG, Circuit Judges.


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The appellant was tried on a one count indictment charging him with the sale of narcotics on May 16, 1963, to Angel Luis Gonzalez, a Federal Narcotics Agent, in violation of 21 U.S.C. 173 and 174. The jury returned a verdict of guilty and Booker was sentenced to a mandatory minimum term of five years imprisonment.


There was evidence from which the jury was warranted in finding the following facts. Agent Gonzalez was introduced to the appellant by an informer, a special employee of the Government, on May 13, 1963 when they had a brief conversation in the course of which Booker gave Gonzalez a slip of paper on which he had written his name, address and telephone number.


On May 16, 1963, Gonzalez telephoned the appellant at the number given and made arrangements to meet him between 7:00 and 7:30 that evening at a bar on 125th Street in New York City. The agent arrived at the bar at the appointed time but Booker did not appear there until about two hours later. Agent Gonzalez then accompanied Booker to a building at 101 East 122nd Street where Booker instructed the agent to wait for him downstairs. Booker rejoined him a few minutes later and gave him a glassine envelope, which was later found to contain heroin, for which the agent paid Booker $180.


Agent Gonzalez attempted to make subsequent contacts with the appellant in order to make a second purchase, but was never able to do so. The appellant was arrested on March 4, 1965, about 22 months after the sale of narcotics. In making the arrest, Agent John A. Gjersten went to the address which the appellant had written on the slip of paper and had given to Agent Gonzalez on May 13, 1963. Agent Gjersten arrived at the apartment at about 4:30 a.m. and told the appellant's mother and brother that he had a warrant (though in fact he had none) for the arrest of Joseph Booker. They said that Booker was in a rear bedroom to which they permitted the agent to have access, and he there arrested the appellant.


Booker was taken to an interrogation room at the office of the Federal Bureau of Narcotics where he was asked to write his name, address and telephone number on a slip of paper so that the information would appear correctly on the property envelope. Agent Gjersten compared the writing with the May 13, 1963 writing which was in the file and asked Booker to make another similar writing, which he did. Booker was then shown the May 13, 1963 writing and admitted that it had been written by him. That paper and the March 4, 1965 writing were admitted into evidence at the trial without objection; and it was stipulated to and testified to by the appellant that he had made both of the writings.


No objection was made either before or during the trial which could be said to have raised the question of whether the delay between the sale of narcotics and the appellant's arrest denied him due process of law. Under the decisions of this court in D'Ercole v. United States, 361 F.2d 211 (2d Cir., May 19, 1966) and United States v. Torres, 343 F.2d 750, 752 (2d Cir., 1965), the lack of timely objection precludes our consideration of the claim. This is particularly true where, as here, defense counsel's awareness of this issue was manifested by his claim at the trial that the delay supported a reasonable doubt as to whether or not the sale of narcotics ever took place.


We do not decide the merits of the question of whether the handwriting sample was admissible as evidence under the Fifth Amendment. That question, which is now before the Supreme Court in Gilbert v. California, 384 U.S. 985, 86 S.Ct. 1902, 16 L.Ed.2d 1003 (June 13, 1966), is not properly before this court since the defense, far short of objecting to its admission, expressly stipulated that Booker had written the handwriting samples of both May 13, 1963 and March 4, 1965. See United States v. Indiviglio, 352 F.2d 276, 279-280 (2d Cir., 1965), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966).

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The judgment of conviction is affirmed.