United States v. Haden

• Decision Date: 01 July 1968
• Docket Number: No. 16230.,16230.
• Citation: 397 F.2d 460
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert HADEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

397 F.2d 460 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Albert HADEN, Defendant-Appellant.

No. 16230.

United States Court of Appeals Seventh Circuit.

July 1, 1968.

Terence F. MacCarthy, Chicago, Ill., for defendant-appellant; Thomas D. Decker, Chicago, Ill., of counsel.

Eugene Robinson, Thomas A. Foran, U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Gerald M. Werksman, Eugene Robinson, Asst. U. S. Attys., of counsel.

Before CASTLE, Chief Judge, and HASTINGS and KILEY, Circuit Judges.

HASTINGS, Circuit Judge.

Appellant-defendant Albert Haden appeals from a judgment of conviction entered February 14, 1967, after a jury found him guilty of transferring narcotic drugs without the required order form in violation of 26 U.S.C.A. § 4705(a).¹ The trial court sentenced appellant to ten years' imprisonment.

The jury found him not guilty on counts charging him with distributing narcotic drugs outside their original stamped package in violation of 26 U.S. C.A. § 4704(a) and with knowingly transporting and concealing drugs unlawfully imported into the United States in violation of 21 U.S.C.A. § 174.

The evidence, viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), follows. In May, 1962, the Federal Bureau of Narcotics learned that appellant had written to a German chemical firm inquiring about processes for the conversion of morphine sulphate to diacetyl-morphine (heroin) and that he had written other foreign chemical firms, one of them in November, 1962, about the processing or supplying of opium alkaloids. On June 19, 1963, a federal narcotics agent, posing as a German chemist, called on appellant at his home in Chicago, Illinois. The agent told appellant he had been referred to him by an employee of the German chemical firm and wanted to talk with him about the manufacture of alkaloids. Appellant denied writing to the German firm and terminated the conversation.

The agent made the same representations in a letter mailed to appellant July 2, 1963. In the letter he listed a telephone number by which appellant could reach him.

Two weeks later, on July 15, 1963, appellant telephoned the agent and arranged a meeting at appellant's home. At the meeting appellant told the agent that he wanted to manufacture heroin, but that his earlier attempts to obtain the process from foreign chemical companies and from scientific literature were unsuccessful. He offered to pay the agent for teaching him the process. The agent pretended to be surprised and reluctant. Appellant stated that he had spent a sizable amount of money in his efforts to produce heroin, and showed the agent a basement laboratory where he said he had conducted his experiments. In response to the agent's question about the quality of morphine base used in his experiments, appellant said he had used morphine sulphate as a base. At the close of the meeting he told the agent to meet him again on July 17 at a Chicago hotel.

At their July 17 meeting the agent offered to assist appellant for a fee of $5,000. Appellant accepted the offer. He told the agent he could get large quantities of morphine sulphate tablets through an employee of a Detroit chemical company. The agent then told appellant that if the morphine sulphate was in tablet form he would want a sample of the tablets for analysis. Appellant said he would provide a sample and asked the agent to call him on July 19 to determine whether the sample had been obtained.

The agent called appellant on July 19. Appellant informed him that he had not been able to obtain the morphine sulphate and that it would take four to six weeks to obtain it. Appellant asked how he could contact the agent. The agent told appellant he had no fixed address, but would contact appellant.

In a letter mailed to appellant August 26 from New York, the agent listed an Indianapolis address at which he could be reached. He also stated that he would call appellant should he come to Chicago.

One and one-half months later on October 7 the agent called appellant. Appellant arranged a meeting on October 8. At that meeting he told the agent he had been unable to obtain the morphine sulphate tablets. He asked the agent what equipment would be required to demonstrate the process for producing heroin, and the agent said he would furnish a list. At appellant's request the agent agreed to produce five 100-gram lots of heroin for appellant's instruction using morphine sulphate as a base. The agent said he had to return temporarily to Germany and would contact appellant on his return about November 15, 1963.

On November 20, the agent again called appellant and the latter arranged a meeting. At that meeting appellant reported that he had been unable to obtain the morphine sulphate. The agent indicated doubt about appellant's sincerity and suggested they forget the project. Appellant assured the agent that he was serious about learning to produce heroin and asked for the list of necessary equipment and materials. The agent then read a list of laboratory equipment and chemicals. Appellant told the agent how payment would be made and what quality and yield he would consider acceptable. Other details of the project were discussed.

The agent called appellant on December 3 and appellant arranged a meeting on December 5 at a Chicago hotel. At the meeting, after learning that appellant had not obtained the morphine sulphate, the agent announced he was backing out of the project. Appellant reaffirmed his sincerity and asked the agent to contact him near the end of January, 1964.

The agent called appellant on February 17, 1964. Appellant arranged a meeting at a Chicago hotel on February 18. He explained that for personal reasons he had been unable to work on the project but would soon be able to go into operation. He told the agent to call him on February 25.

The agent called on February 25 and appellant arranged a meeting for February 27. At that meeting he asked the agent to accompany him to his home. While en route appellant spotted a car of the Federal Narcotics Bureau following him. He dropped the agent off, after telling him to call back later that evening.

The agent made the requested call and, pretending fear of arrest, announced his withdrawal from the project. Appellant assured him that all was well and arranged another meeting that evening.

At that meeting appellant announced he was ready to proceed and had large quantities of morphine sulphate available. He told the agent he would let him have twelve grams of morphine sulphate tablets for an initial operation producing pure morphine and asked the agent to meet him on the following day, February 28.

The two met on February 28. Appellant said he had the morphine sulphate and described a clandestine procedure by which the agent was to return the pure morphine derivative to him. After assuring himself that they were not followed, appellant motioned to his parked car and told the agent: "Go over to my car. Open the door. Under the right front mat you will find the stuff. Take it and leave. I will be on the other side watching while you do this." The agent crossed the street, opened the right front door of the car, leaned inside, lifted the right front floor mat and found an object wrapped in tissue paper. He removed the object, backed out of the car, closed the door, placed the object in his pocket and walked away.

The object removed from the car was a plastic tube containing white tablets. The tablets were analyzed and found to be morphine sulphate.

On March 2, the agent met appellant pursuant to plan and reported success in deriving pure morphine from the tablets he obtained on February 28. The agent then left appellant without delivering the pure morphine to him as planned. Appellant was arrested later that day and a search of his home was conducted pursuant to a search warrant.

Appellant urges three grounds for reversal of his conviction.

First, he contends that the morphine sulphate removed from his car on February 28, 1964 was inadmissible as the product of an unlawful search and seizure in violation of the Fourth Amendment. He contends that the agent's action in entering the car and removing the package containing the narcotics was a search and seizure and that his apparent consent to the search was vitiated by the trickery and deceit employed by the agent.

Appellant places principal reliance on Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 (1921). The pertinent issue in that case was whether the Fourth Amendment was violated by the surreptitious taking of documents from the accused's office by a government agent posing as a social visitor. The Court held that it did, stating that "whether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment * * *." (Emphasis added.) 255 U.S. at 306, 41 S.Ct. at 264.

The Government contends there was no violation of the Fourth Amendment, placing principal reliance on three recent decisions of the Supreme Court. The first of these is Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966), where the facts were similar to the pertinent facts in this case. There an undercover federal narcotics agent posing as a customer called defendant and inquired about the possibility of purchasing marihuana. Defendant invited the agent to his house, where he sold the agent a quantity of marihuana. After a second, similar transaction, defendant was arrested. His motion to suppress as evidence the marihuana and conversations between...