Before SCHNACKENBERG, PARKINSON and KNOCH, Circuit Judges.
Defendant Vairee McCartney was indicted on six counts charging sales of narcotic drugs on or about June 10, July 30, and December 12, 1957, and receiving, concealing, buying, and facilitating the transportation and concealment after importation of narcotic drugs on the same occasions in violation of Title 26 U.S.C. Sec. 4705(a) and Title 21 U.S.C.A. § 174, respectively, both as amended by the Narcotic Control Act of 1956.
The jury returned a verdict of guilty on all six counts. The Government filed certified copy of a prior narcotics conviction. The Court imposed a sentence of twenty years. Defendant appealed. The errors on which he relies arise out of rulings on the evidence.
The testimony of the Government's witnesses conflicted sharply with that of defendant. These conflicts presented issues of fact for the Jury.
It is, however, undisputed that a special employee of the Bureau of Narcotics, known to defendant as Angelo Williams and to the Bureau as George Dallas, introduced the defendant to Federal Narcotics Agent John F. Graf, describing Graf as a dealer in narcotics.
Government witnesses testified that on the three occasions stated in the indictment, defendant received money from Graf to procure narcotics which defendant subsequently delivered.
Defendant, on the other hand, testified that Williams had proposed a plan whereby he and defendant would take Graf's money and sell him harmless non-narcotic preparations; that Williams kept the preparations, and that at no time did defendant transfer these, or any other substances, to Graf.
Typical of the conflict in details is defendant's statement that, on June 10, 1957, he and Williams took money from Graf and left together to purchase the ingredients from which the non-narcotic preparation was made. Agents Graf and Attie both testified that Williams remained with Graf and that defendant departed alone.
Williams was not produced as a witness. The testimony indicated that defendant and the Government both sought unsuccessfully to locate him.
Defendant states the contested issues to be:
(1) Is the admission over defendant's objection of a hearsay statement to the effect that defendant had sold narcotics on occasions prior to those charged in the indictment reversible error?
(2) Can defendant's failure to deny the special employee's statement concerning prior sales of narcotics be interpreted only as an admission by silence that he had in fact made such sales or does the testimony presented by defendant indicate that he might have been motivated not to deny the statement even if he had not in fact made prior sales of narcotics, and therefore that his silence is not an admission?
(3) Is the statement of the special employee concerning past sales of narcotics admissible not to prove the truth of such statement but only for the purpose ...