Sherman v. United States

PETITIONER: Sherman
RESPONDENT: United States
LOCATION: Philadelphia Board of Public Education

DOCKET NO.: 87
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 356 US 369 (1958)
ARGUED: Jan 16, 1958
DECIDED: May 19, 1958

Facts of the case

Question

Media for Sherman v. United States

Audio Transcription for Oral Argument - January 16, 1958 in Sherman v. United States

Earl Warren:

The next case is Number 87, Joseph George Sherman, versus United States of America.

Mr. Lowenberg.

Henry A. Lowenberg:

Yes, sir, if Your Honor pleases, if the court please.

This case comes here on a writ of certiorari to the Federal Court of Appeals of the Second Circuit.

There had been two trials of this indictment.

First trial ended in a judgment of conviction which was unanimously reversed by the Federal Court of Appeals, Second Circuit.

Then there had been a retrial of the case, another judgment of conviction and an affirmance by the Federal Court of Appeals.

I might, at the outset, say to Your Honors, that the same witnesses testified in both cases with the following exceptions.

That the Government produced witnesses to testify that the narcotics in this case had been disposed of, had been destroyed and therefore could not be produced at the trial.

And the Government then offered a new evidence as a part of the government's case, the defendant having rested at the conclusion of the government's case at the first trial and the second trial.

The previous criminal record of the petitioner would show that in 1942 and this was an indictment charging alleged sales of narcotics in 1951.

That 1952, the petitioner had been convicted of the sale of narcotics and at 1946, he had been convicted of the unlawful purchase of narcotics in violation of Section 2553, not sections 173, 174.

The introduction of those that record was strenuously objected to, was overruled.

The motion for a mistrial denied in other conviction and then the Federal Court of Appeals Second Circuit affirmed the judgment of conviction.

Now, the witnesses as I stated to this Court, who testified in the second trial, were the same witnesses who testified in the first trial.

It's our contention one, that the Court erred in not directing a verdict of acquittal on the ground there was entrapment as a matter of law.

And two, the admissibility of this record into evidence.

Thirdly, that if it were admissible it was so remote in time, as to make it absolutely prejudicial and biased to the accused it's offering it into evidence.

Three agents testified for the Government and an informer, a man working with an agent of the Federal Bureau of Narcotics.

And I dare say the Government cannot dispute that this Charles Kalchinian was an informer attached to an agent.

This Kalchinian had been arrested and convicted of two sales of narcotics in June, 1951 and upon his conviction, he agreed to work with the Federal Bureau of Narcotics.

According to the record he built up three cases for the Government.

And he went on just to testify.

At page 100, on cross examination, and when I had a referral back to the question asked of him at the previous trial, and it was your job while working with these agents to go out and try to induce a person to sell narcotics to you, is not correct.

I would say yes to that.

Do you remember that?

If that's what I said, let us stand that way.

Because he had previously said that he didn't recall that kind of testimony.

Now, the facts were generally these.

This petitioner was seated in a doctor's office.