522 F.2d 20 (10th Cir. 1975), 74-1810, United States v. Gurule

Docket Nº:74-1810.
Citation:522 F.2d 20
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Francis GURULE a/k/a Frank, Defendant-Appellant.
Case Date:September 12, 1975
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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522 F.2d 20 (10th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

Francis GURULE a/k/a Frank, Defendant-Appellant.

No. 74-1810.

United States Court of Appeals, Tenth Circuit

September 12, 1975

Argued Aug. 20, 1975.

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Arthur Bosworth, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty. and Thomas E. Henry, Asst. U. S. Atty., Denver, Colo., on the brief), for plaintiff-appellee.

Robert M. Vockrodt, Aurora, Colo., for defendant-appellant.

Before LEWIS, Chief Judge, and HILL and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Francis Gurule a/k/a Frank (Gurule) appeals his jury conviction on three counts of distributing and aiding and abetting in the distribution of controlled substances in violation of 21 U.S.C. § 841(a)(1) 1 and 18 U.S.C. § 2. 2

The first count of the indictment charged Gurule with having knowingly and intentionally distributed a quantity of heroin, a Schedule I controlled substance, on or about December 13, 1973, in Denver, Colorado. The second and third counts charged Gurule, Cloyd Ronald Penrod and Francisco Luis Ortega Nunez with distributing and aiding and abetting in the distribution of a quantity of heroin and a quantity of cocaine, the latter a Schedule II controlled substance, on or about January 13, 1974, 3 in Denver.

Gurule's defense at trial and the primary contention he raises on this appeal was that due to the activities of the drug enforcement agents and their informant, Larry Sawden, he was entrapped as a matter of law.

Government witness Agent Lee Phillips, of the Drug Enforcement Administration, testified that he was first introduced to Gurule by informant Larry Sawden on November 17, 1973; that Sawden reputed Gurule to be in possession of and willing to sell cocaine and that a purchase was made from Gurule on the 17th; that after the initial introduction he advised Sawden to "sever all relationships" with Gurule to avoid any problems of entrapment; that Sawden was not present at any of the transactions subsequent to the introduction; that he directly arranged a meeting with Gurule on December 12, 1973, at which time he was advised by Gurule that a kilo of cocaine had arrived in Denver on December 10th and could be purchased the following weekend; that he attempted to stall negotiations for a purchase at that time because bureau funds were not available; that Gurule then offered to supply a "free sample" of heroin to indicate the quality of the substance which would be available in the future; that on December 13, 1973, he met with Gurule, was given the "free sample" and was informed by Gurule that unless he agreed to purchase eight ounces of cocaine and eight ounces of heroin no further negotiations could be made with Gurule or his source of supply; that the price of the drugs was set at $1,000 per ounce plus an additional $1,000 to be paid to Gurule for his services; that Gurule later advised him that his source had informed him that the "free sample"

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was of a higher quality than initially indicated; that on January 4, 1974, he contacted Gurule and requested to purchase one kilo of cocaine and one pound of heroin; that Gurule told him he would have to talk to his source; that during a later conversation that same day he was informed by Gurule that the maximum purchase that could be worked out would be 12 ounces of heroin and 19 ounces of cocaine for a price of $35,000 plus an additional $1,000 for payment to Gurule; that they agreed the transaction would take place at 6:30 p. m. on January 13, 1974, at the Arapahoe County Airport; that he and Agent Koller of the Drug Enforcement Agency met Gurule at the airport on the 13th of January but were informed that the purchase had been changed to 23 ounces of cocaine and 12 ounces of heroin and that Gurule was to take them to an unknown location in Denver so they could be observed by his source to determine if they were police; that they were driven by Gurule to the Ranch Room Inn in Denver where the car was parked close to a window with the car's dome light on while Gurule left the car momentarily; that they observed someone looking at them out of the window and that shortly thereafter Gurule returned to the car with the narcotics in a brown paper bag; that after running a field test they arrested Gurule; and that Agent Koller, together with other agents, then entered the Ranch Room and arrested Penrod and Nunez, the only two persons found inside.

Agent Koller's testimony substantially corroborated the testimony of Agent Phillips relating to the above events which occurred on January 13, 1974.

Denver police officer Leuthauser testified that he was conducting a surveillance at the residence of Gurule on January 13, 1974; that on the afternoon of that day he followed Gurule first to the area of the Ranch Room Inn, then to the airport and back to the Ranch Room Inn where he observed Penrod open the back door of the Inn and set down what appeared to be a brown paper bag; and that he then observed Gurule get out of his car, pick up a bag and return to the car.

Denver police officer Ramirez testified to the same effect as officer Leuthauser.

Special Agent Barter of the Drug Enforcement Administration testified that he had followed Gurule to the vicinity of the Ranch Room Inn on the Afternoon of January 13, 1974, prior to the time...

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