United States v. Draper

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: MAJOR, Senior Circuit , and KILEY and SWYGERT, Circuit
• Citation: United States v. Draper, 411 F.2d 1106 (7th Cir. 1969)
• Decision Date: 17 June 1969
• Docket Number: No. 17012.,17012.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carlton C. DRAPER, Defendant-Appellant.

411 F.2d 1106 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Carlton C. DRAPER, Defendant-Appellant.

No. 17012.

United States Court of Appeals Seventh Circuit.

June 17, 1969.

Frank W. Oliver, Chicago, Ill., for appellant.

Thomas A. Foran, U. S. Atty., Chicago, Ill., John Peter Lulinski, Michael B. Nash, Lawrence T. Stanner, Asst. U. S. Attys., of counsel, for appellee.

Before MAJOR, Senior Circuit Judge, and KILEY and SWYGERT, Circuit Judges.

MAJOR, Senior Circuit Judge.

Defendant Draper was charged by indictment with receiving, concealing, buying and selling heroin, in violation of Title 21 U.S.C.A. Sec. 174. His first conviction, following a jury trial, was vacated on the premise that the jury had been improperly instructed. The case was retried, again by a jury which, on March 28, 1968, returned a verdict finding him guilty. From a judgment entered thereon defendant appeals.

The case is here solely on the basis that the court erred in its refusal to allow defendant's motion for judgment of acquittal made at the close of the evidence. The motion stated "that the defendant had shown a prima facie case of entrapment and that the government failed to carry its burden at that stage of showing that the defendant was not induced to commit the offense, or if he was induced to commit it that he had a previous disposition to commit it, had adduced no evidence to negate the defendant's contention that the heroin was originally placed in his hands by the informant, and had otherwise failed to prove a prima facie case."

Defendant's counsel, evidently in an effort to escape the rule, established by many cases, that ordinarily the defense of entrapment presents a jury question, contends that this is not a "standard entrapment" case. He argues that Hernandez, from whom defendant admittedly obtained possession of heroin, was an admitted government informer; that the conduct of the latter was "shocking or offensive per se," and that the government did not sustain its burden of rebutting defendant's testimony as to the circumstances under which he received possession of the heroin. This contention rests on the failure of the government to call the informer as a witness.

We think there is little, if any, merit in defendant's contention. Even so, we are disposed to make an abbreviated statement of the evidence, keeping in mind the general rule that it must be considered in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Weaver, 360 F.2d 903 (CA-7), cert. den. 385 U.S. 825, 87 S.Ct. 57, 17 L.Ed.2d 61.

Federal narcotics agent Jordan testified that he watched as the informant, Hernandez, dialed defendant's telephone number and that he secured Hernandez' permission to listen in on the call. The agent recognized defendant's voice. Hernandez asked if it was defendant and was told it was. Hernandez said he had a buyer for the heroin. Defendant said, "If the purchase goes down, I don't want to meet anybody. Just come alone." Hernandez said that would be fine. Defendant then said, "I have two ounces and the price would be twelve hundred dollars." Hernandez agreed to call defendant on Friday, June 16, 1967, at 10:30 a.m.

On Friday, agent Jordan again observed Hernandez dial defendant's number, and listened in on the phone conversation. Defendant answered. Hernandez said everything was ready and asked if defendant was ready. Defendant said he was, and reiterated that he had approximately two ounces and the price was twelve hundred dollars. Defendant instructed Hernandez to meet him at the twenty hundred block of North Halsted Street at about noon.

Agent Jordan was then joined by agent Kuksta, and they followed Hernandez to the appointed meeting place, where they parked 100 feet from Hernandez' car. A short while later defendant and a girl crossed the street and got into Hernandez' car. After a short wait, the agents left their car and on reaching Hernandez' car saw defendant holding several aluminum foil packets, one of which he had open, and in this aluminum packet was a quantity of white powder. The agents then arrested defendant and the girl. After his arrest, defendant said he had only one thing to say and that was that the girl was not responsible for anything that happened.

Agent Kuksta corroborated agent Jordan as to what transpired at the time of defendant's arrest.

Defendant testified that he was acquainted with Hernandez and thought it possible that he was in the drug traffic but denied any drug transactions with him. He admitted that on June 16, 1967, he entered Hernandez' car and "gave him his package," a package which Hernandez had brought to defendant's house and left in his keeping two or three weeks before defendant's arrest. Defendant testified that Hernandez, at the time he gave defendant the package, stated, "Here, set on this for me." Defendant admitted to numerous telephone conversations with Hernandez as testified to by agent Jordan, but denied that either the word "heroin" or the words "twelve hundred dollars" were mentioned. Defendant testified that when he entered the car shortly before his arrest he stated, "Here, man," and threw the package on the seat. Hernandez opened the package, looked at it and made no reply when defendant asked him why he was looking at it.

Cheryl Sheain, who was in the car with defendant at the time of his arrest, testified that Hernandez asked defendant if he had the package and said he wanted to see it.

Defendant's contention that he was entitled to a directed verdict on the ground that the government failed to call the...