United States of America, Appellee, v. James Herman Walker, Appellant, 306 F.2d 44 (2d Cir. 1962)

Annotate this Case
US Court of Appeals for the Second Circuit - 306 F.2d 44 (2d Cir. 1962) Argued June 6, 1962
Decided July 9, 1962

Gore & Freiberg, New York City (Sidney Freiberg, New York City, of counsel), for appellant.

Robert M. Morgenthau, U. S. Atty., Southern District of New York (Robert J. Geniesse, Sheldon H. Elsen, Asst. U. S. Attys., of counsel), for appellee.

Before CLARK, WATERMAN and MOORE, Circuit Judges.


Appellant was convicted in the Southern District of New York, after a trial before Judge Weinfeld, of having violated 21 U.S.C.A. §§ 173 and 174. The indictment contained two substantive counts and a conspiracy count; appellant was found guilty on all three. Trial began in mid-afternoon and was completed that day. The Government's witnesses were all agents of the Bureau of Narcotics. One of them testified that on the two occasions charged appellant had delivered cocaine to him and had received the money from him for the purchases. This agent, and another, testified that at the time appellant was arrested he admitted that he had had these dealings. Appellant, who testified in his own behalf, stated on the stand that he had been present on the occasions when the sales were made to the agent, and he further admitted that he knew on one of the two occasions that narcotics were being sold, but denied handling the cocaine or the money on either occasion, and also contradicted the agents' testimony in other less relevant details.

Judge Weinfeld, observing the demeanor of the witnesses and taking into account the contradictory testimony, was satisfied that the version of the occurrences related by the government witnesses was the more credible version.

Upon appeal appellant claims that the evidence so evaluated by the trial judge was insufficient to establish appellant's guilt and that the testimony of the agent who testified to the sales was so colored by animosity toward appellant and was so frequently contradicted as to be unworthy of belief. The decision below hinged upon the credibility of the witnesses, the findings relative thereto were those of an experienced and impartial judge, and the judgment of guilty is affirmed.