1975. Ortiz was searched and no heroin was found on him. The jury was instructed to disregard the testimony of Ortiz's arrest.
At the close of the government's case, we denied Ortiz's motion for judgment of acquittal. In his defense, Ortiz testified that he never sold heroin and never observed the other defendants sell heroin. On cross-examination, the assistant United States attorney probed Ortiz's source of income. Ortiz stated that he had two part-time jobs. Over defense counsel's objection, the government attorney asked Ortiz if he had had over $1000 on his person in February 1975. Ortiz admitted that he had and stated that he obtained the money by selling two cars.
In rebuttal, the government sought to prove: (1) that bills totaling $1050 were found on Ortiz on February 7, 1975; (2) that among these bills were $35 in marked currency; and (3) that these marked bills had been used in a purchase of heroin two days earlier by Robert Dempster at 4240 Reese Street. Defense counsel objected because we had suppressed testimony concerning the marked bills after a pretrial hearing at which we concluded that such evidence resulted from an unconstitutional search and seizure. The government countered that this evidence was admissible under Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975) and Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971). We concluded that the evidence was indeed admissible to impeach the credibility of Ortiz's assertion that the money came from the proceeds of the two car sales and therefore overruled the objection.
The government called Officer Joseph O'Hara who testified that he seized $1050 from Ortiz on February 7, 1975. These bills included three tens and one five which contained Officer Raymond Stackhouse's badge number in the upper left-hand corner. O'Hara testified that he then called Stackhouse and asked him to read the serial numbers from the bills which he had given Dempster to use to purchase heroin at 4240 Reese Street. At this point an objection based on the best evidence rule was interposed and withdrawn. When Officer O'Hara testified that the serial numbers recorded by Officer Stackhouse matched those on the bills seized from Ortiz, we sustained the objection based on the hearsay rule.
The government then called Officer Stackhouse who testified that he recorded the serial numbers on three $10 bills and one $5 bill before giving those bills to Robert Dempster to purchase heroin. He then read those serial numbers to the jury.
Officer O'Hara was recalled and testified that the numbers on the bills he seized matched those recorded by Stackhouse.
At this point, the assistant United States attorney informed us at side bar that he would be unable to demonstrate that the bills were unavailable without the use of hearsay. Because the testimony concerning the bills was not the best evidence, and because the government was unable to demonstrate their unavailability, we ordered all the testimony of Officers O'Hara and Stackhouse stricken. We instructed the jury to disregard that testimony "in toto."
Defendant Ortiz has moved for a new trial based on the claimed error in admitting the testimony about the marked bills. Despite the fact that the testimony was stricken, we cannot, given the relative paucity of the evidence against Ortiz, conclude with any certainty that the stricken testimony played no part in the jury's deliberations.
Therefore, we must decide whether our original decision to allow the testimony, over defense counsel's objection, was proper.
Defendant asserts that, because we suppressed the evidence of the marked bills at the pretrial hearing, the government was precluded from introducing it. However, while the government may not introduce suppressed evidence in its case-in-chief, it may use it to impeach the credibility of a defendant who testifies. Oregon v. Hass, supra; Harris v. New York, supra. We think it irrelevant that the testimony which the government sought to impeach; i.e., that Ortiz's source of income which accounted for his possession of over $1000 was the sale of two automobiles, was elicited on cross-examination. Federal Rule of Evidence 607 allows the impeachment of a witness by any party, including the party calling him. Certainly if the government may impeach the credibility of its own witness, it may impeach that of a defendant after cross-examination.
Nor can we say that the impeachment here related to a collateral matter. The source of Ortiz's income and his denial of involvement with the sale of heroin were issues central to the determination of his guilt or innocence of the conspiracy charge. Once Ortiz admitted having over $1000 on his person and claimed that its source was the sale of automobiles, the government was entitled to impeach by demonstrating that some of the bills had been used to purchase heroin two days earlier. Such evidence would surely cast doubt on Ortiz's claim that the sale of heroin was not a source of income to him.
Of course, all this testimony was stricken on defendant's motion and so defendant himself eliminated any opportunity to rebut its effect by offering any explanation as to how he obtained the marked bills. Nor was he able to obtain the benefit of the usual cautionary instruction to the jury that it could consider the evidence of the bills only as to the issue of his credibility and not as any substantive evidence of guilt. This resulted, however, from defense counsel's own tactical decision to press his objection on the best evidence ground and to move to strike. We are satisfied that no error was committed in allowing the testimony as to the marked bills.
In addition, we find defendant's second basis for a new trial, i.e., our failure to grant a mistrial after the government questioned Ortiz as to whether his father sold heroin, without merit. Ortiz testified that his father, for whom he worked, does not sell heroin, and we twice instructed the jury to disregard the question. In fact, the second time we elaborated to the jury that:
"Obviously there isn't a shred of evidence that Mr. Ortiz's father is anything other than a perfectly respectable businessman with a hobby store or whatnot store at 17th and Mt. Vernon and that you should absolutely not consider in any way, shape or form." N.T. 625.
We are satisfied that the question played no part in the jury's consideration.
We will deny Ortiz's motion for judgment of acquittal or, in the alternative, for a new trial. Additionally, we will deny all other defendants' motions. We are convinced that these motions are without merit and that the guilty verdicts are supported by more than ample evidence.
JOSEPH S. LORD, III, CH. J.
AND NOW, this 3rd day of May, 1976, it is ORDERED that defendants' motions for judgment of acquittal or, in the alternative, for a new trial be and they hereby are DENIED, and the defendants are ORDERED to appear for sentence on Friday, May 14, 1976, at 2:00 p.m., in courtroom 17A, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
JOSEPH S. LORD, III, CH. J.