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United States v. Brown

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: February 18, 1972.

UNITED STATES OF AMERICA
v.
ROBERT HOWARD BROWN A/K/A HOWARD BROWN, APPELLANT

Van Dusen and Hunter, Circuit Judges, and Layton, District Judge.

Author: Per Curiam

Opinion OF THE COURT

This appeal challenges an April 29, 1971, judgment of conviction and commitment based on a jury verdict finding defendant guilty of a one-count indictment charging the defendant with assaulting, resisting, and interfering with the United States officers of the Bureau of Narcotics and Dangerous Drugs while engaged in the performance of their official duties, in violation of 18 U.S.C. § 111. One such officer was shot by defendant about midnight when he was in the process of ejecting his local Police Chief from his home,*fn2 after such Chief had informed him that there were federal narcotics agents outside who wanted to see him. Thereafter, there were sounds of water running in the house and 30 minutes later defendant came out and surrendered.

Defendant objects to the Government's referring in its opening and closing arguments to the circumstances which led the agents to Brown's residence, namely, the belief that Brown possessed heroin*fn3 and that, after a search warrant for the premises had been secured the next morning, the presence of heroin in a drainpipe from the laundry sink and in a glass jar found in an upstairs closet was determined. After a careful consideration of the record, we can find no reversible error in the rulings of the trial judge admitting this evidence*fn4 and permitting the above-described arguments. See United States v. Todaro, 448 F.2d 64, 67 (3d Cir. 1971), and cases there cited; United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971).

Secondly, defendant contends that his motion to suppress the gun and the heroin residue should have been granted. The Affidavit for Search Warrant justified the search for heroin and the gun.*fn5 See United States v. Singleton, 439 F.2d 381 (3d Cir. 1971); cf. United States v. Harris, 403 U.S. 573, 577-583, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).

Finally, defendant claims that a new trial is required due to the admission in evidence of a prior consistent statement made by a Government witness in a state court hearing five days after a prior inconsistent statement by such witness had been testified to by a defense witness.*fn6 Particularly in view of the curative instruction given by the trial judge, we have concluded that this contention must be rejected. See IV Wigmore, Evidence (3d Ed.), § 1126, p. 202; United States v. DeLarosa, 450 F.2d 1057 (3d Cir., 1971); cf. United States v. Grosso, 358 F.2d 154, 158 (2d Cir. 1966), rev'd on other grounds, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968).

The April 29, 1971, judgment will be affirmed.


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