Taylor v. United States
| Decision Date | 11 January 1963 |
| Docket Number | Crim. No. 1427. |
| Citation | 212 F. Supp. 640 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | B. D. TAYLOR v. UNITED STATES of America. |
William Medford, U. S. Atty., J. O. Israel, Jr., Robert J. Robinson, Asst. U. S. Attys., Asheville, N. C., for the United States.
When the above was before the Court of Appeals, 4 Cir., 303 F.2d 165 and on a hearing was reversed and remanded as decided May 2, 1962, Judge Soper, writing the opinion for the Court said,
Further directions were contained in the opinion which would be applicable to the ultimate disposition of the hearing ordered.
On this mandate coming down the undersigned Judge was able, after much correspondence, to secure Mr. Bailey T. Patrick, Jr., an attorney of Charlotte to represent the petitioner, and the hearing was set for Charlotte since it appeared that such would be more convenient to all parties whose presence was being required; which hearing convened at 11:00 o'clock on September 11, 1962.
The following witnesses were present: The petitioner and his wife, Mrs. B. D. Taylor; James M. Baley, Jr., United States Attorney at the time this action was originally heard; James E. Walker, petitioner's attorney at the original hearing; Richard M. Patch, Agent in Charge in North Carolina, with the Federal Bureau of Narcotics of the Treasury Department; Capt. W. A. McCall, Chief of Detectives, and Lt. Charles E. Adams, of the Charlotte Police Department, who were assigned to the Narcotics Squad. The transcript of the evidence contained 191 pages.
From this hearing, as well as the original trial in Charlotte, and the hearing had in Asheville on July 24, 1961, the following facts are found:
That four or five days prior to July 1, 1960, a relatively large raid was made in Charlotte and Mecklenburg County on those known to be dealing in narcotics, and from such raid quite a number of individuals were arrested and placed in jail, and a great deal of publicity was given by the various news mediums. One of those caught in this raid by the police officers was Fred Connor Allen, a known addict, who lived at 224 McDonald Avenue, and who on July 1, gave to Capt. McCall and his associates information to the effect that on that date two men from South Carolina, unknown to him at the time, had approached him at the Baker Cab Company place in Charlotte, inquiring in substance if he was one among the individuals who had recently been arrested in Charlotte for trafficking in narcotics. Allen informed Capt. McCall and his associates that he admitted his identity and one of the men asked him if he was interested in buying additional narcotics. That Allen was informed that they had five hundred morphine tablets which they wished to dispose of. Allen informed them that he was interested in making purchases for his own use and that of future sales, but informed them that he did not at that time have any money,—telling them that if they would come back on July 5, that he would have sufficient money, he hoped, to make such purchase;—the agreement being that they would telephone Allen on their arrival in Charlotte on that date. Allen immediately, in furtherance of his agreement with the Narcotics Division of the Charlotte Police force telephoned Capt. McCall, giving to him the information obtained. Subsequently Capt. McCall communicated with Federal Narcotics Agent Richard M. Patch in Greensboro, and it was agreed that he would come to Charlotte on July 5.
On getting to Charlotte on such date Mr. Patch met with Capt. McCall and Lt. Adams and interviewed Fred Allen, at which time it appeared that Allen had never seen these two men before but that he was told they had learned his name and the names of others involved in the raid, who were then incarcerated in jail from accounts appearing in the newspapers.
At such time it was agreed that Agent Patch was to pose as a taxi driver, living with the defendant Allen, and in furtherance of an effort to make an apprehension and destroy the narcotics, the three officers together with Allen went to the residence of Fred Allen, all in view of the information which Allen had obtained from the two men,—that the call would be made by them to him between 12:00 and 12:30 on July 5. The three officers together with Allen arrived at Allen's home at approximately 11:45 and at exactly 12:35 one of the men telephoned Allen. The call was monitored, with Mr. Patch listening, and inquiry was made as to whether or not Allen had the money. On Allen replying that he did, instructions were given as to how Allen could meet with the person with whom he was talking on the telephone. Allen had previously been instructed to tell the two men to come to his residence; this he did, —telling them that his car was broken down and that they would have to come out to his house.
At 12:50 a 1955 Cadillac was parked in front of Allen's residence. At that time Lt. Adams was across the street from Allen's house, sitting in an unmarked police car. After the occupants of the Cadillac looked the premises over they got out of the automobile and entered the Allen residence. Those two men were Jerry Ellison Ballew and B. D. Taylor. Each came in and was met by Allen in the living room. Mr. Patch then walked into the living room and was introduced by Allen to Ballew and Taylor as "Jack" and Allen thereupon explained that he and Jack were working together. A general conversation then ensued and Narcotics Agent Patch then asked how much morphine they had for sale; whereupon Taylor, the petitioner, answered that they had 495 tablets. At this time Capt. McCall was in the bedroom adjacent to the living room in which the conversation was had. Inquiry was made by Agent Patch as to the price and Taylor replied, "I can't sell them for less than $2.00 a tablet". Inquiry was then made by Patch as to how much they could supply each week and Ballew in turn replied that they could furnish approximately five hundred tablets, a week, but that he was not too sure. It was then that Mr. Patch asked to see what they had and Taylor told Ballew to go out to the car and get them. Ballew left the Allen home, went to the Cadillac parked in front thereof, and on reaching in it, returned shortly and handed Taylor a bottle which turned out to contain 493 one quarter grain morphine tablets. Thereupon Taylor handed the said bottle to Mr. Patch.
Following his examination to determine the contents thereof, Mr. Patch removed $100 of money advanced from government sources and which had been previously marked, and inquired, "Who gets the money?". Taylor then replied,
Whereupon Mr. Patch said, "Well, I will give half to you and half to you." meaning half to Ballew and half to Taylor. Thereupon he paid $50 to Ballew and handed another $50 to Taylor, who said, "Put it on the table."
At that time it was noticed by Mr. Patch that Lt. Adams was coming up the front walk, and a pre-arranged signal was given to Capt. McCall in the adjoining room and both almost immediately rushed into the living room.
It is estimated that this interview took approximately twenty minutes, the arrest taking place at 1:15.
Capt. McCall and Agent Patch took Taylor to the Police Department. Agent Patch drove the automobile with Capt. McCall sitting in the back seat with Taylor. Lt. Adams took Ballew in custody and conveyed him to the Police Department. There they were questioned and at 3:45, according to the records, they were taken before a United States Commissioner and bond was set at $10,000. Each was then delivered to the United States Marshal who transferred them immediately to the Cleveland County Jail at Shelby.
Mr. Patch never saw Taylor from that hour on July 5 until petitioner came into the court on Tuesday, October 4, when the case was called and the plea entered.
Each was charged with a violation of 26 U.S.C. § 470(a), as is shown by the Bill returned by the Grand Jury.
The petitioner was released under bond on July 11, 1960. His co-defendant, Ballew was never able to give bond and remained in custody until his trial on October 4.
Following the apprehension, investigation and preliminary hearing on July 5, as the Treasury Rules require, Mr. Patch made a four page single spaced report of the facts involved in this case and later added certain recommendations, and when received, attached the chemical analysis of the contents of the bottle. However he had previously made a memorandum record of the events and transcribed all of these into his case report. His evidence has consistently been of the same import in the three hearings and is taken from the notes made immediately following the occurrence.
The petitioner and his co-defendant Ballew both lived in Clinton, South Carolina, a relatively small town of less than 8,000 people, situate approximately 95 miles from Charlotte, and both had been raised together in said city, knowing each other virtually since birth.
Each of the two has a rather lengthy criminal record, and both have served a number of prison sentences, and are obviously familiar with courts and court procedure.
Following his release under bail and in either late July or early August, petitioner sought the services of Honorable Frank B. Snepp, a member of a rather...
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