Submitted in banc to this court May 26, 1965.
Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays and Anderson, Circuit Judges. Waterman, Circuit Judge (concurring). J. Joseph Smith, Circuit Judge (dissenting).
MOORE, Circuit Judge (with whom Chief Judge LUMBARD and Judges FRIENDLY, KAUFMAN and HAYS concur, Judge ANDERSON concurs in the result, Judge WATERMAN concurs in the result in a separate opinion, and Judge SMITH dissents in a separate opinion).
This appeal was argued originally before a panel of this court. Before decision, the active circuit judges, sua sponte on May 26, 1965, ordered in banc consideration of this case and six other cases which involve related questions of importance in the field of criminal law.
Maximo Del Llano was indicted on two counts for receiving, concealing, selling, etc., cocaine on March 19th and March 24th, 1964, in violation of 21 U.S.C.A. §§ 173, 174, and on two counts for selling cocaine without an order form in violation of 26 U.S.C. §§ 4705(a), 7237(b). The two sales were made to narcotics agent Barry J. Quinones on March 19th and March 24th, 1964. Del Llano was arrested in early June 1964 and about two weeks later was indicted.
The non-jury trial began on July 20, 1964. The trial court found Del Llano guilty on all four counts, concluding that Del Llano had actively promoted the sales in question. The written findings accepted the substance of the agents' testimony, although no mention was made of Del Llano's alleged admissions of guilt. Del Llano's testimony apparently was not credited. No motions for a new trial were made on the grounds raised now on appeal, nor on any other grounds.
The Government presented its case through the testimony of agent Quinones, who described his and Del Llano's role in the transactions. His testimony was corroborated in considerable part by that of agent Durham, who had been surveilling some of the events on both days. After stipulating that a chemist would provide the necessary technical findings, the Government rested its case.
Del Llano testified on his own behalf and gave a version of the events which conflicted with the agents' testimony. Among the inconsistencies was testimony (on direct) by Del Llano that he had not seen Quinones after March 19th. On cross-examination, Del Llano repeated this assertion and added that he had never talked to Quinones about narcotics. The defense then recalled agent Quinones as its witness (defense counsel had earlier reserved the right to recall him as part of the defense's direct case) and attempted to impeach his (Quinones') testimony. On cross-examination, the Government asked Quinones whether he had had any conversation with Del Llano on the date when he was arrested in June, and Quinones said that he had.
Since the determination of the issues on this appeal depends upon the relatively few questions and answers on Quinones' cross-examination, they are set forth in full:
"Q. Mr. Quinones, did you have any conversation with Maximo Del Llano on the date of his arrest, June 3, 1964?
"Q. Was that conversation concerning the events of March 19th or March 24th, 1964?
"A. That is correct, sir.
"Q. Will you please tell the Court in substance what he had said ...