United States v. Calhoun, 12244-12246.

• Decision Date: 29 July 1958
• Docket Number: No. 12244-12246.,12244-12246.
• Citation: 257 F.2d 673
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph CALHOUN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John CHILDRESS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

257 F.2d 673 (1958)

UNITED STATES of America, Plaintiff-Appellee, v. Joseph CALHOUN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. John CHILDRESS, Defendant-Appellant.

No. 12244-12246.

United States Court of Appeals Seventh Circuit.

July 29, 1958.

Howard T. Savage, Frank W. Oliver, Chicago, Ill., for appellants.

Robert Tieken, U. S. Atty., Albert F. Manion, John Peter Lulinski, Asst. U. S. Attys., Chicago, Ill., for appellee.

Before FINNEGAN, SCHNACKENBERG and PARKINSON, Circuit Judges.

FINNEGAN, Circuit Judge.

The cold record as filed in our Court, on appeal from convictions in criminal cases, supplies the data for our opinions. Salvaging convictions for the government on the basis of margin evidence and conjecture is outside our reviewing function. These two appeals, by Calhoun and Childress, respectively are prime examples of narcotic trafficking, abhorrent to all decent citizens, but improperly handled at the accusatory and trial level when these defendants were tried jointly by the district judge sitting without a jury. These prosecutions were grounded on a five count indictment¹ and each defendant was found guilty under the counts in which he was named. The relevant statutory provisions on which that indictment is bottomed are set out in the margin² and various evidentiary aspects of the record follow.

Isabelle Thomas (government "special employee") a narcotic addict for thirty years who had served a sentence in a Federal Penitentiary for possession of narcotic drugs beginning in 1952, and who used about three shots of narcotics a day in March of 1957, met Federal Agent John Stenhouse by chance upon a public street. This meeting occurred on or about March 20, 1957 and at that time Isabelle Thomas surrendered to Stenhouse a quantity of narcotics which she had upon her person. The Agent did not place her under arrest. On this date she visited the Bureau of Narcotics in the City of Chicago with Stenhouse and other agents. On March 22, 1957 she again visited the Bureau of Narcotics and in the presence of Stenhouse dialed a telephone number, Seeley 3-9116. She heard a voice on the other end of the line which she testified that she recognized as that of defendant Joseph Calhoun, and she spoke into the telephone stating that she wanted to talk about merchandise and the voice said that he would send "Fuzzy" to see her. Agent Stenhouse heard the voice and Isabelle Thomas's conversation at that time but could not identify the voice as that of Joseph Calhoun on the telephone.

It is stipulated this telephone, SE 3-9116, was unlisted, and was registered to Joseph Calhoun at the Traveler's Hotel. Thomas testified she identified herself as "a big stout white girl who used to pick up for Nina", and inquired about "merchandise." Calhoun said he understood what she was talking about, and would send "Fuzzy" around to see her. The fact of the call, the number called, and the conversation were corroborated by Stenhouse. Further, Stenhouse testified that in later telephone conversations with defendant Calhoun the voice was similar to the voice heard on this occasion.

Isabelle Thomas had answered and heard the voice of defendant Calhoun only twice before and never before over the telephone. She had known him over a period of three years from seeing him on the street, and the first occasion on which she heard his voice, (the date she could not remember) they had merely exchanged salutations on the street and the second occasion, the date which she fixed on cross examination about three months after the first conversation and again upon the street, and later as the day before the aforesaid phone conversation, she asked Calhoun to see him and he said, "I will."

Immediately after this conversation Isabelle Thomas either took public transportation to her home in a hotel as she testified or was transported there by agent Stenhouse, as he testified.

About three and one half or four hours after the telephone conversation according to the testimony of Isabelle Thomas, the defendant John Childress appeared at the desk in the lobby of the hotel in which Isabelle Thomas lived and asked for her; that defendant Childress told her their stuff was the best on the West side and cost thirty dollars a fourth, and that he would send a girl around to see her the next day. Thomas also testified that Childress told her that "Joe" had sent him. Agent Stenhouse testified that he saw Isabelle Thomas talk to Childress on March 22, a few minutes on the street near her hotel.

Childress admitted he was known as "Fuzzy." Thomas testified he told her he was Fuzzy; that Joe had sent him; and that they then discussed the price and quality of heroin. Fuzzy further stated he would send a girl around to see her. Defendant Childress judicially admitted the fact of this meeting (which was corroborated by surveiling narcotic agents), but claimed he was there as a cab driver, though he lacked both a driver's or chauffeur's license at that time.

The following morning, March 23, 1957, Barbara Villegas, who was then a stranger to special employee Thomas, approached the latter in the King's Men's Grill, and stated: "You're Isabelle aren't you? Fuzzy sent me. Are you ready to do business?" Thomas and Villegas then agreed to meet at Goodwill Industries at 10:00 A. M. the same day to consummate the sale. This conversation was admitted by the trial court subject to "Rule 43 28 U.S.C.," and later stricken. No other witnesses saw this meeting or corroborated the conversation.

That morning Thomas had received a telephone call and returned to the restaurant where she met Stenhouse who searched her outer garments and gave her sixty dollars. She then went to a building housing the Goodwill Industries and received two packages of heroin from Barbara Villegas. Agent Stenhouse had followed her to Goodwill Industries and had seen the hands of Isabelle Thomas and Barbara Villegas meet, and federal agent Charles M. Adams had seen Isabelle follow Barbara Villegas into the Goodwill Industries building. Later Thomas handed Stenhouse a package (apparently consisting of two parcels) and he, in turn, passed it to Agent Adams. Counsels' stipulation established that the contents consisted of 62.5 grains and 61.5 grains heroin hydrochloride. Isabelle Thomas testified that she purchased narcotics from Villegas in another restaurant on March 26, 1957 and that on that date she (Thomas) had telephoned Seeley 3-9116 in the presence of Stenhouse, who corroborated this telephone conversation, and asked Calhoun, testifying she recognized his voice, about merchandise and that he said "Merchandise? What merchandise? I don't know what you are talking about," and hung up the telephone. She testified that on March 29, 1957 she met Villegas at still another and different restaurant. After talking with Stenhouse and receiving money from him she purchased narcotics from Villegas. She testified that on April 9, she reached Villegas by phone at the Seeley 3-9116 number and had a conversation with her, met her, and bought narcotics from her. She further testified that on April 11 or 12th she called Villegas who agreed to meet her but there is no testimony that any meeting took place. Isabelle Thomas had no contact with defendant Calhoun between March 21 and April 11, 1957 except the alleged phone calls.

On March 26 and March 29, 1957, Villegas delivered additional quantities of heroin to special employee Thomas. These meetings and deliveries were observed and corroborated by narcotic agents. After each of such deliveries, Villegas was observed by agents to meet the defendant Childress and engage him in brief conversation.

On the occasion of the meeting of March 29, 1957, with Villegas, special employee Thomas referred to her telephone call to defendant Calhoun. Thomas said she was sorry she had called and made him angry. Villegas replied that Joe wasn't angry, but that he was afraid the phone was tapped. Villegas further stated Joe did not want Thomas to call him in the future. Thomas was wearing a miniphon wire recorder during this conversation, and the wire recording, plus a tape-recorded transmission, were offered in evidence as Government's Exhibits 10 and 11, respectively. Her testimony as to the conversation, together with the recordings, were admitted into the record under "Rule 43" by the trial court, and later stricken.

Federal Agent Robert M. Shroeder testified that he observed the meetings between Isabelle Thomas and Barbara Villegas on March 26, March 29, and April 9 and saw Villegas give Thomas a package on March 26. He also testified that on March 29, after her meeting with Isabelle Thomas, Barbara Villegas met Childress at Ogden and Madison, carried on a brief conversation and went into the building at 28-30 North Ogden avenue and that he knew Childress lived at 30 North Ogden. He did not observe them hand one another anything.

On April 9, 1957, Thomas telephoned SE 3-9116, and asked for Joe. She stated Barbara Villegas came to the phone, said "Oh, it is you." Villegas then asked for Thomas' number and said she would call right back. Villegas then called Thomas back, and said she had not been able to talk to Joe about the deal Thomas wanted. Thomas and Villegas then made arrangements to meet at Madison and Halsted Streets, to respectively buy and sell narcotics, and shortly thereafter did so meet, Thomas receiving an additional package of heroin from Villegas. These occurrences, including the conversation, were corroborated by Stenhouse, and were admitted pursuant to "Rule 43." The conversations were later stricken.

On April 11, 1957, Thomas again called SE 3-9116, and had a conversation with Villegas relative to further purchase of narcotics. This conversation was also corroborated by Agent Stenhouse; was also admitted pursuant to "Rule 43" and was also stricken.

Before the trial the death of Barbara Villegas was suggested and the cause dismissed...