United States v. Muscato

534 F.Supp. 969 (E.D. Ny. 1982)

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Nature of the Case

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Facts

Muscato (D) and others entered into a plan to manufacture pen guns. An agent from ATF made a deal with D and the others to purchase 1000 units at $20,000. During the delivery of the units, ATF arrested the parties. D refused to cooperate with the government and was tried. Many of the co-conspirators who testified as government witnesses against D, a police officer, were not exactly model citizens. A Gollender was virtually worthless as witness until he identified a gun that D had lent him (it had a special mark to determine the safety position that Gollender had put there when he got the pistol from D). It was claimed by the Government that Gollender had described the gun to an ATF agent before being shown the gun by that agent. The gun was given to Gollender by D and made its way back to D and two other co-conspirators. D objected to the introduction of this evidence as hearsay but was overruled by the court. D then took away the Government's 'thunder' on this issue and brought out the issues on cross-examination of the Government agent. D was convicted and moved for a new trial.