United States v. Pollock, Crim. No. 75-269-T.
| Decision Date | 06 August 1976 |
| Docket Number | Crim. No. 75-269-T. |
| Citation | 417 F. Supp. 1332 |
| Parties | UNITED STATES of America v. Judd Stewart POLLOCK. |
| Court | U.S. District Court — District of Massachusetts |
Charles E. Chase, Asst. U. S. Atty., Boston, Mass., for the U. S Harvey A. Silverglate, Thomas G. Shapiro, Boston, Mass., for defendant.
On April 12, 1975, the defendant Judd Stewart Pollock was arrested in a Boston hotel room for allegedly attempting to sell one pound of cocaine to an undercover agent assigned to the Boston office of the Drug Enforcement Administration (DEA). A few weeks later, he was charged by a federal grand jury sitting in Boston with one count of knowingly and intentionally possessing with intent to distribute, and distributing, a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1).
Pollack has moved for dismissal on a variety of grounds. His underlying contention is that, at the time he was arrested, he was working as an undercover agent for a Federal-State DEA Task Force based in Denver, Colorado. Moreover, he claims that government agents destroyed evidence which would support his allegation that he was an undercover agent at the time of his arrest.
The background of this case first came to my attention at a three day hearing hereinafter, September hearing of defendant's motion to dismiss on grounds that he was an undercover agent at the time of his arrest.
Among those who testified were the defendant and James I. Brinson, a Deputy Sheriff of Jefferson County, Colorado. At the times material to this case, Brinson worked for the Federal-State DEA Task Force based in Denver, with which Pollack claims to have been associated. Brinson testified pursuant to a subpoena that required him to bring "any and all documents, reports, records, notes and voice recordings" maintained by him in connection with this case.
At the September hearing the following evidence was adduced.
On January 20, 1975, the defendant was arrested by Dale Kravitz and James Congrove of the Jefferson County Sheriff's office as he approached a house near Evergreen, Colorado in which approximately 1,000 pounds of marijuana had allegedly been seized two hours earlier. The two arresting officers then turned the defendant over to Brinson who brought him to his DEA Task Force office in Denver.
Both the defendant and Brinson testified that they then participated in discussions concerning the defendant's possible cooperation with the government. Their recollections of those discussions differed substantially.1
The defendant testified that Brinson told him that in order to be released on the marijuana charge he would have to convince Brinson's DEA superior (Special Agent Melvin B. Ashton) that he would be useful in Ashton's efforts to obtain arrests of major narcotic traffickers. Accordingly, when Ashton arrived soon thereafter, and the defendant was given Miranda warnings, he immediately indicated a desire to cooperate with the DEA.
The defendant told the two officers that he had been working with an organization which had been responsible for smuggling large amounts of marijuana into the United States from Mexico by aircraft and camper truck. He told them he could supply information that could implicate fifteen individuals associated with that organization.2 According to the defendant's testimony, Ashton responded by saying "that's fine". The conversation ended with Ashton stating that the defendant's file would be locked in Ashton's desk, presumably in exchange for the defendant's continued cooperation, and that the matter would go no further.3
The defendant testified that he was then taken by Brinson to Brinson's office in Golden, Colorado where he and Brinson discussed the ground-rules for implementation of the agreement which had been reached earlier. According to the defendant, he explained to Brinson the potential difficulties of being able to maintain the confidence of the marijuana organization once it was learned that the 1,000 pounds of marijuana had been seized. The defendant volunteered, however, that he knew of a potential source of cocaine in Boston (Mr. Y) with whom he might be able to arrange a purchase.4 Brinson expressed interest in the prospect of arranging an eight pound cocaine sale in Denver, telling the defendant that a colleague had been responsible for a seven and one-half pound cocaine "bust" only a short time before. When the defendant said that it might be possible to get at least five pounds, Brinson allegedly responded
Accordingly, the defendant promised to contact Mr. Y to arrange a cocaine sale in Denver. He indicated that he might have to initially purchase smaller quantities from Mr. Y and dispose of them successfully in order to gain Y's confidence before any major transaction could be arranged. Brinson responded that he understood the defendant might be required to "front" cocaine in this manner and told the defendant "that's fine." He also informed the defendant that when the large deal was arranged, he would supply a briefcase full of money "to flash on somebody." Brinson asked to hear from the defendant every couple of days while he was in the field, but said he understood that "sometimes informants can't get in touch with the DEA." Accordingly, Brinson took down the name of the defendant's brother, as well as a Colorado telephone number at which the defendant indicated he could be reached. Brinson said that he would get in touch with the defendant through his brother if the defendant hadn't contacted him within two or three weeks. When the defendant asked "What if I get caught," Brinson responded "Don't get caught; but if you do, get in touch with me and I will do everything I can for you."
Brinson, for his part, did not specify at the September hearing what conversations had taken place in Denver as opposed to Golden. He indicated, however, that the only promises made in exchange for the defendant's cooperation at any time were: (1) that no press release would be issued concerning the defendant's arrest in Evergreen; and (2) that whatever cooperation the defendant did provide would be brought to the attention of the district attorney and the judge handling the defendant's case. Brinson testified that no guarantees on the ultimate disposition of his case could be made.
Brinson testified that the defendant's cooperation would consist of providing information about the operations of the marijuana organization with which he had been associated. In that regard, defendant was to call Brinson or his office daily to report his progress in the field. Although Brinson obtained a local telephone number for Pollock's brother for inclusion on a DEA form, the defendant allegedly indicated to Brinson that he did not want his brother to be aware of this matter. Brinson also testified that he had no other way in which to reach the defendant.
Brinson testified that the two men did mention the subject of cocaine and defendant's cocaine source, but that their conversation was devoted chiefly to the subject of marijuana. Moreover, according to Brinson, the subject of defendant's authorization to engage in cocaine sales was never discussed. Brinson could not remember telling defendant of any specific desire to obtain eight pounds of cocaine. According to Brinson, there was no discussion about the need for defendant to "front" smaller amounts of cocaine to obtain the confidence of his source. To the contrary, defendant had indicated that he knew Mr. Y very well. Brinson did not recall any discussion about the placing of the defendant's file in Ashton's desk.
* * *
Following his discussions with Brinson, the defendant was released. In the course of the next several days, the defendant called Brinson three times, speaking with him twice and leaving a message for him once.5 The day following his arrest he telephoned the DEA office and left a message for Brinson with the switchboard. A few days later, he successfully contacted Brinson and indicated to him that his marijuana contacts were extremely unhappy about the disappearance of one thousand pounds of marijuana and did not believe that he had been "busted." According to the defendant, however, he did tell Brinson that he was continuing his attempts to reach Mr. Y, and Brinson expressed his approval of this plan. A day or so later, defendant called Brinson again to report his progress in setting up a transaction with Mr. Y in Denver at which time Brinson expressed satisfaction with his efforts.
Defendant testified that shortly after his second telephone conversation with Brinson, he spoke to Mr. Y once again and learned that Y had heard "through the grapevine" that there had been a large marijuana seizure in Evergreen and that someone who fit defendant's description had been involved. Fearful of a set-up, Y refused to deliver any cocaine to Denver.
Defendant testified that, as a result, he began a nationwide search, under an assumed name, to locate an alternate cocaine source. He left Colorado by train on February 1, 1975, without informing Brinson. He arrived in Chicago February 2 and flew that day to Ironwood, Michigan. He remained in Michigan until February 13 and then drove from Michigan to Connecticut in his camper which had been driven east by a friend. From there, he moved on to Boston where he remained from February 16 until February 19.
While in Boston, the defendant had dinner on two occasions with a friend of his known as Mr. X6 whom he had known at least since April 1974. At their first dinner, on February 16 or 17, the defendant told Mr. X of his need for a source of cocaine. Mr. X indicated that he too was looking for cocaine. On February 18 the defendant met Mr. X for dinner again and this time was introduced by X to an individual known as ...
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