United States v. Escobedo

• Decision Date: 25 August 1970
• Docket Number: No. 16916-16918.,16916-16918.
• Citation: 430 F.2d 603
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel ESCOBEDO, a/k/a Danny Escobedo, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel AGUIRRE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.2d 603 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Daniel ESCOBEDO, a/k/a Danny Escobedo, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Daniel AGUIRRE, Defendant-Appellant.

Nos. 16916-16918.

United States Court of Appeals, Seventh Circuit.

June 30, 1970.

Rehearing Denied August 18, 1970.

Rehearing Denied August 25, 1970.

COPYRIGHT MATERIAL OMITTED

Thomas J. Farrell, Sidney S. Altman, Chicago, Ill., for defendant-appellant.

Thomas A. Foran, U. S. Atty., John B. Simon, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee; John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.

Before CASTLE, Senior Circuit Judge, CUMMINGS and KERNER, Circuit Judges.

Rehearing Denied in No. 16917 August 18, 1970.

Rehearing En Banc Denied in Nos. 16916 and 16918 August 25, 1970.

CUMMINGS, Circuit Judge.

This appeal is from convictions of narcotic offenses under two indictments consolidated for trial. One indictment was in two counts and first charged defendant Daniel Escobedo with selling 11 grams of heroin to Robert B. Victoria on August 3, 1967, in Chicago without the necessary written order blank, in violation of 26 U.S.C. § 4705(a). The second count charged Escobedo with receiving the heroin on the same date, knowing that it had been illegally imported, in violation of 21 U.S.C. § 174.

The other indictment was in six counts and charged Escobedo and Daniel Aguirre with like offenses occurring in Chicago on June 6 and 13, and July 27, 1967. The defendants were found guilty on all counts after a jury trial. Escobedo received concurrent sentences of seven years on each of the two counts of the first indictment to run consecutively to fifteen-year concurrent sentences on each of the six counts of the second indictment. Aguirre was also sentenced to fifteen-year concurrent terms on the six counts of the second indictment. We ordered the appeals consolidated.

In May 1967, government informant Santiago Hernandez¹ introduced Escobedo to "Robert Garcia of Gary, Indiana." Garcia was actually Special Agent Robert Victoria of the Federal Bureau of Narcotics.

As to the indictment against Escobedo alone, the evidence showed that at 10 P. M. on July 27, 1967, Victoria asked Escobedo how much an ounce of heroin would cost. Escobedo said he would have to check. Victoria telephoned him on July 31 and was told that he had not yet found out the price but would have the information on August 1. Victoria telephoned Escobedo at home that day and was told that an ounce of heroin would cost $1,755. Escobedo promised Victoria a good weight of heroin for $1,000, and they agreed to effect the sale on August 3 at Marion's Lounge at 27th and Princeton Streets, in Chicago.

Accordingly, Victoria met Escobedo at Marion's Lounge at 8:30 P.M. on August 3. In the men's lavatory, Escobedo told Victoria he could purchase 12 grams of heroin for $1,000. Victoria consented and paid Escobedo the $1,000. Since Escobedo would not let Victoria accompany him to pick up the heroin, Victoria took Escobedo's wallet as security. Ten minutes later Escobedo left the Lounge and went to the alley behind his residence. He returned at 9 P.M. and signaled Victoria to come outside the Lounge. There he handed Victoria a package containing 11.313 grams of a mixture containing heroin hydrochloride. Victoria returned Escobedo's wallet later that evening. He had not given Escobedo the requisite order blank when he purchased the heroin.

As to the three dual offenses involved in the other indictment concerning both Escobedo and Aguirre, Victoria told Escobedo on May 11, 1967, that he would like to purchase 5 grams of heroin. Escobedo said he would have to check with his source and then brought Aguirre to Marion's Lounge to meet Victoria. Aguirre said his source did not have any heroin available, but that Aguirre and Escobedo were awaiting a shipment.

On June 1, 1967, by pre-arrangement, Victoria met Aguirre outside of Mi Ultimo Refugio Lounge at 26th and Normal Streets in Chicago. Aguirre said the heroin shipment had arrived, and Victoria said he was still interested in purchasing some of it. Aguirre did not know the price per gram and told Victoria to call him about it. On June 6, Victoria did so and was advised that the heroin would cost $50 per gram. He agreed to buy five grams.

At 2:30 P.M. that day, as planned, Victoria met Aguirre at Mi Ultimo Lounge, they entered Victoria's car, and Victoria gave Aguirre $250 for the heroin. Aguirre then left the car and walked to the alley behind Escobedo's residence, which he entered through a rear gate. Two hours later, Aguirre left Escobedo's residence and met Victoria at Marion's Lounge. Aguirre gave Victoria an aluminum foil package containing 3.087 grams of a mixture containing heroin hydrochloride.

On June 12, Victoria telephoned Aguirre and arranged to meet him at Mi Ultimo Lounge the next day. When they met, Aguirre entered Victoria's automobile and received $500 for heroin at about 12:30 P.M. Two hours later, Aguirre re-entered Victoria's car and gave him 9.333 grams of a mixture containing heroin hydrochloride in two aluminum foil packages. Aguirre stated that he had seen the powder being weighed.

The final transaction set forth in the indictment occurred on July 27. That evening Victoria met Escobedo in Marion's Lounge and said he wanted 10 grams of heroin. After making a telephone call, Escobedo said he could obtain pure heroin for $90 per gram. Victoria then paid Escobedo $450 for 5 grams, and Escobedo agreed to return with the heroin in an hour.

After Escobedo made his telephone call to find out about the heroin, Aguirre left Mi Ultimo Lounge and went into the back yard of Escobedo's residence at 8 P.M. At 9:45 P.M., Escobedo drove into the alley of his residence and left the alley ten minutes later. At 10 P.M. Escobedo returned to Marion's Lounge and told Victoria that delivery would be made shortly. Half an hour later, Escobedo told Victoria he was going to his car to obtain the heroin. Escobedo left the tavern, entered his car, re-entered the tavern, and gave Victoria aluminum foil packages containing 4.140 grams of heroin hydrochloride mixture. On all three occasions covered by the second indictment, Victoria did not give Aguirre or Escobedo the required blank form.

Kel-set Evidence

Both defendants contend that the trial court erred in admitting evidence obtained by the use of a Kel-set worn by Agent Victoria when conversing with Escobedo and Aguirre. By means of the Kel-set, Agents Raebel and McCurdy overheard and testified to incriminating statements made by the defendants. Defendants assert that their Fourth and Fifth Amendment rights were thus transgressed, and that under our decision in United States v. White, 405 F.2d 838 (7th Cir. 1969), certiorari granted, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559, evidence derived through the use of that device should have been suppressed. Our decision in White rested principally upon our interpretation of the implications of the Supreme Court's opinion in Katz v. United States, 389 U. S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. In light of the Court's prospective application of that decision (Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248), we have twice denied application of White to transmissions predating the December 18, 1967, limit governing application of Katz. Roviaro v. United States, 420 F.2d 304 (7th Cir. 1970); United States v. Teller, 412 F.2d 374, 377 (7th Cir. 1969). The last use of the Kel-set in this case occurred on August 3, 1967. No trespass was involved in any of the transmissions in this case, and therefore no violation of defendant's Fourth Amendment rights resulted. On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270. The statements were voluntarily made to the undercover agent and involved no infringement of defendants' privileges against self-incrimination guaranteed by the Fifth Amendment. Cf. Hoffa v. United States, 385 U.S. 293, 303-304, 87 S.Ct. 408, 17 L.Ed.2d 374.

Recorded Telephone Conversations

Defendants next urge that their constitutional rights were violated by the admission of tape recordings of phone conversations between Escobedo and Victoria in the summer of 1967.² Victoria agreed to have these conversations monitored and recorded. Defendants contend that the decisions in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and United States v. White, 405 F.2d 838 (7th Cir. 1969), certiorari granted, 394 U.S. 957, 89 S.Ct. 1305, 22 L.Ed.2d 559, prohibit introduction of those tapes. It is clear that, prior to the decisions relied upon by defendants, Victoria's consent to the recording legitimated the tapes as evidence for a subsequent trial. See, e. g., United States v. Williams, 311 F.2d 721 (7th Cir. 1963), certiorari denied, 370 U.S. 812, 83 S.Ct. 1703, 10 L.Ed.2d 1035. Even assuming, however, that such were no longer the case in this Circuit,³ those conversations occurred prior to the December 18, 1967, effective date of the Katz and White decisions. Nor can we accept defendant's suggestion that these tapes were procured in violation of Illinois state law,⁴ and therefore should have been suppressed. It is well settled in this Circuit that federal law governing the admissibility of evidence in federal criminal trials permits the introduction of such tape recordings, even if illegally obtained under state law. United States v. Krol, 374 F.2d 776, 778 (7th Cir. 1967), certiorari denied, 389 U.S. 835, 88 S.Ct. 46, 19 L.Ed.2d 97; United States v. Martin, 372 F.2d 63, 66 (7th Cir. 1967), certiorari denied, 387 U.S. 919, 87 S.Ct. 2033, 18 L.Ed.2d 972.

Defendants further contend that the district court erroneously denied their pretrial motions for the production of the tapes of Escobedo's conversations with Victoria. They contend that this production was compelled by the mandate of Rule 16(a) (1) of the Federal Rules...