481 F.2d 864 (9th Cir. 1973), 72-2735, United States v. Ellsworth

Docket Nº:72-2735, 72-2992.
Citation:481 F.2d 864
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Allen G. ELLSWORTH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Juan DE LA TORRE, Defendant-Appellant.
Case Date:June 15, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 864

481 F.2d 864 (9th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Allen G. ELLSWORTH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Juan DE LA TORRE, Defendant-Appellant.

Nos. 72-2735, 72-2992.

United States Court of Appeals, Ninth Circuit.

June 15, 1973

Rehearing Denied in No. 72-2735 July 31, 1973.

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S. Thomas Pollack, Deputy Federal Public Defender (argued), Los Angeles, Cal., for Allen G. Ellsworth.

Roger S. Hanson (argued), Beverly Hills, Cal., for Jaun De La Torre.

Mike Kenney, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Leslie E. Osborne, Eric A. Nobles, William R. Hawes, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Before KOELSCH and TRASK, Circuit Judges, and HARRIS, [*] District Judge.

GEORGE B. HARRIS, District Judge:

On May 17, 1972, appellants and others were named in a six-count indictment charging conspiracy to distribute a controlled substance and substantive offenses of distribution of a controlled substance. Appellants were each charged in Count I only, the conspiracy count. Following trial by jury, appellants were convicted.

The facts pertinent to these appeals are as follows: One Rip Palmer, who was employed by appellant Ellsworth at American-Balboa Glass in Costa Mesa, California, became aware sometime before March of 1972 that two of the other co-defendants, Aragon and Lovato, were engaged in the sale of narcotics. Palmer, who had a prior criminal record, thereupon contacted the Costa Mesa Police Department and offered to serve as an informant.

During March, Palmer, acting as an informant, met with Aragon and Lovato for the purpose of discussing possible sales of heroin and cocaine. Near the end of March, Aragon gave Palmer a sample of heroin to present to his (Palmer's) "people." A meeting between Aragon, Palmer, and undercover narcotic agents occurred on March 28 at which time future sales of heroin were discussed. There was a sale of heroin at that time.

A meeting took place on April 6 at the American-Balboa Glass Company between Lovato, Palmer, and two undercover agents for the purpose of arranging a future sale.

Another meeting between Lovato, Palmer, and the undercover agents occurred on April 11 at the Age of Gardner Restaurant. After making arrangements from the restaurant to pick up narcotics from his supplier, Lovato left, later to return with the narcotics, at which time a sale was consummated.

The next sale occurred approximately on April 19 at the El Comedor Restaurant. Palmer testified that during negotiations for this sale Lovato said that he had to call his "connections" and subsequently he dialed telephone number 543-9302 and asked for "Juanito or Doroteo." Palmer also testified that after the phone call, Lovato left to pick up the narcotics.

A Government witness at trial identified telephone number 543-9302 as being that of the El Valle Restaurant in Garden Grove, California. This restaurant was owned by one Doroteo De La Torre,

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and appellant Juan De La Torre was employed there at the time.

Another Government witness, Agent Larry Barnes of the Federal Bureau of Narcotics and Dangerous Drugs [BNDD], testified that at the time of the April 19 sale, he observed appellant De La Torre operating the cash register and performing other duties in the restaurant. After the restaurant closed, Barnes observed Lovato meet with appellant De La Torre and hand him a roll of American currency.

Other evidence adduced at trial showed that on April 11, 1972, a date when narcotics transactions involving the conspirators were taking place, Officer Casey of the Costa Mesa Police Department observed Lovato visit appellant De La Torre and the El Valle Restaurant. Agent Levesque of BNDD testified that on March 28, 1972, a date when Aragon was engaged in a narcotics transaction, he surveilled Aragon going to and from the El Valle Restaurant.

On April 27, Aragon met with Agent Creason of BNDD for the purpose of negotiating a sale of heroin. Arrangements for delivery of the heroin were made on May 1 and the sale of 113 grams of heroin was consummated on May 2 between Aragon and Agent Creason. Following this sale, surveillance officers observed Aragon delivering a sum of money to appellant De La Torre at Aragon's El Comedor Restaurant.

On May 4, Agent Creason met with Aragon at the Holiday Inn in Los Angeles to discuss the quality of heroin Aragon had sold to Creason on May 2 and possible future transactions.

When Aragon arrived at the meeting he was accompanied by appellant Ellsworth, who was introduced to Creason as Aragon's source of supply for narcotics. Creason indicated that he was dissatisfied with the quality of heroin sold to him on May 2 and that he was not going to pay for it. Ellsworth then said that he had purchased and supplied to Aragon the four ounces of heroin purchased on May 2. Ellsworth also stated that he had purchased the heroin from his source with the understanding that it had not been "stepped on" or diluted.

Upon learning for the first time that Ellsworth was Aragon's source of supply, but suspecting that this was not true, Creason expressed his disbelief that Ellsworth was in fact Aragon's source of supply for the heroin sold him on May 2. Confronted with Creason's disbelief, Ellsworth nonetheless insisted that he was indeed Aragon's source of supply and that he had supplied him with the heroin which Creason had purchased on May 2. Later, however, when Ellsworth was not present, Aragon told Creason that he was merely passing off Ellsworth as his source for the heroin sold on May 2.

When Ellsworth was again present, Creason complained about the quality of the heroin...

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