United States v. Pascal

• Decision Date: 27 June 1979
• Docket Number: No. 79 CR 98-2.,79 CR 98-2.
• Citation: 496 F. Supp. 313
• Parties: UNITED STATES of America, Plaintiff, v. Joel PASCAL, Defendant.
• Court: U.S. District Court — Northern District of Illinois

496 F. Supp. 313

UNITED STATES of America, Plaintiff, v. Joel PASCAL, Defendant.

No. 79 CR 98-2.

United States District Court, N. D. Illinois, E. D.

June 27, 1979.

Thomas McQueen, Candy Fabri, Asst. U. S. Attys., Chicago, Ill., for plaintiff.

Samuel K. Skinner, Prentice Marshall, Jr., William F. Conlon, Sidley & Austin, Chicago, Ill., for defendant.

ROSZKOWSKI, District Judge.

This cause comes before the court on Defendant Joel Pascal's motions to dismiss the indictment and to suppress evidence. A hearing on these motions was held on May 29, 1979, June 1, 1979, and June 18, 1979. Oral arguments on the motions were heard on June 22, 1979. Defendant Joel Pascal was indicted for violation of two counts of Title 21, United States Code, Section 841(a)(1), one count of Title 21, United States Code, Section 846, and one count of Title 21, United States Code, Section 843(a).

FACTS

In 1978, the Drug Enforcement Administration (DEA) was conducting an investigation into the use of controlled substances by members of the Chicago Board Options Exchange (CBOE) and drug activities at the CBOE. In early 1978, the DEA identified Sheldon Stern as a participant in drug traffic related to the CBOE. Agent Tucci of the DEA testified that he had several telephone conversations with Stern in early 1978. In early July of 1978, Stern indicated to Agent Tucci that Stern's "source" would be going to Florida and would secure a quantity of cocaine while there. On July 11, 1978, Stern called Agent Tucci and said that his source was leaving to go to Florida. On July 13, 1978, Agent Tucci telephoned Stern who stated that he was to meet with his source at 4:00 P.M. on July 13. Agent Tucci passed this information on to Agents Kowalski and Follett and, late in the afternoon of July 13, 1978, Agents Kowalski and Follett observed Stern enter an apartment building at 111 East Chestnut Street in Chicago. Later that afternoon, Agents Follett and Kowalski saw Stern in the company of Pascal. That information was then apparently transmitted by Agents Follett and Kowalski to Agent Tucci who in turn called Agent Thomas Thompson at the airport. Agent Thompson testified that Agent Tucci telephoned him and instructed him to "intercept" Pascal.

Agent Tucci testified that after this information was conveyed to him he called Agent Thompson and instructed Thompson to arrest Pascal upon his return from Florida. Agent Thompson then monitored Pascal's flight to Florida and his return trip from Florida.

Agent Thompson and other DEA agents assigned to the airport met Pascal's flight from Florida at about 11:00 on July 17th. They observed Pascal as he left the boarding area and he was carrying two bags. Pascal proceeded to a phone booth and they overheard a brief conversation in which Pascal said "Shelly, I will be there in 25 minutes, sharp." After placing that call, Pascal, still carrying the two bags, walked quickly down the corridors and down the escalator to the cab stand.

At the cab stand, Pascal was stopped by Agent Thompson and two other DEA agents. Agent Thompson and the other DEA agents told Pascal that they were looking for a man who was smuggling jewelry and, although Pascal did not look like the man nor was he dressed like the man they were seeking, those agents wanted to talk to him. At that point, Pascal was not free to leave and was in the custody of the agents. From the taxi stand, Agent Thompson led the way into the lower level adjacent to the public baggage claim area of Delta Airlines. At that point, Pascal indicated that he would be willing to show DEA agents what he had in his bags, but he would not allow them to search the bags since he had, among other things, accounting papers which he did not want disturbed. As Pascal began to open the first of the bags, one of the DEA agents began to reach into the bag and at that point Pascal said that he would not allow the DEA agents to look further, nor would he reveal to them any of the other documents that he had in the luggage. Inside the terminal and prior to Pascal's opening of his bags, Agent Thompson testified that he informed Pascal that he wished to look into his luggage and that, if Pascal did not consent to the search, he, Agent Thompson, would get a search warrant.

In the public area adjacent to the Delta baggage claim area, Pascal told Agent Thompson that he wanted to talk to an attorney. At that point, Agent Thompson did not allow him to call an attorney but instead told Pascal to close up his bags and follow him. Again, Pascal was surrounded by DEA agents and led to the non-public baggage area of Delta Airlines on the lower level of O'Hare International Airport.

In the non-public area of Delta Airlines, Mr. Thompson took Pascal's bags and placed them on a conveyor belt with other luggage. Two United States Customs Agency dogs sniffed at all the bags on the conveyor belt. Mr. Pascal testified that the dogs had no reaction to his luggage or any other bags on the conveyor. Agent Thompson testified that one dog alerted, indicating the presence of narcotics in Pascal's bags. He also testified that the second dog confirmed the other's narcotics alert on Pascal's bags.

The court finds Agent Thompson's testimony on this subject highly suspect in that on July 14, 1978, just three days prior to the incident involving Pascal's luggage, Agent Thompson, as defendant's uncontroverted Exhibit 30 demonstrates, engaged in what appears to be a totally unconstitutional search and seizure of bags under similar circumstances in the Delta baggage claim area.

As a result of Agent Thompson's participation in the July 14, 1978 baggage search, this court must give his testimony little, if any, weight.

Moreover, one of the customs agent's dogs involved in the alleged search now before the court was also involved in the prior allegedly unlawful search and seizure on July 14, 1978. The reliability of the dog in the instant search is equally questionable based upon the circumstances surrounding the July 14, 1978 search by that same dog. Properly excluding any suggestion of reliability which might arise out of the July 14, 1978 search, one dog involved in the instant search found cocaine on only one occasion in the preceding six months prior to July 17, 1978, and the other found none.

After the dogs sniffed Pascal's luggage, Pascal was then taken into an office in the non-public area of the Delta baggage claim section where he, Agent Thompson, and another unidentified DEA agent spent approximately 20 to 45 minutes. During that period of time, Thompson told Pascal that he, Thompson, was Pascal's "best friend" at that moment and that he realized that Pascal was just a "mule" (someone who is not in the business of selling or distributing cocaine, but simply carries cocaine for others). Thompson told Pascal that he would be interested in having Pascal cooperate and apparently spoke in a friendly manner with Pascal for that period of time. Thompson, Pascal, and the other DEA agent then left the Delta Airlines area and proceeded by car to the DEA office in the international terminal at O'Hare International Airport. At the international terminal, Thompson continued to talk to Pascal and, at some point at the international terminal, Pascal again asked Thompson if he could secure the services of an attorney at that time. Thompson informed Pascal that he would not be permitted a lawyer since the DEA agents worked undercover and were afraid, if any attorney were called in, that their undercover identities would be disclosed. Thompson, in the course of this conversation, told Pascal that if he cooperated, the Drug Enforcement Administration would make his cooperation known to the U.S. Attorneys and recommend that Pascal not be indicted. Thompson said that with Pascal's cooperation plus a recommendation from DEA that he not be prosecuted it would be extremely unlikely the government would prosecute Pascal. Pascal then signed a consent to search form when Thompson told him that to do so would be an indication of his willingness to cooperate. Pascal then, as part of his cooperation with the government, placed a telephone call to Stern and related to Stern a story that had been concocted by agents of the Drug Enforcement Administration. Pascal then left O'Hare Airport to meet with the DEA agents on the following day. Agent Thompson impounded Pascal's bags which were only returned to Pascal on July 18 at approximately 3:00 P.M. after a federal search warrant had been secured and after Pascal's initial briefing at the Drug Enforcement Administration on the 18th floor of the Dirksen Federal Building.

On July 18, 1978, Pascal met with Agent Thompson, Agent Edmund Irvin, Agent Steven Bushendorf, and Intelligence Analyst Franz Hirzy, who is also a DEA agent. This meeting took place at the Drug Enforcement Administration offices at the 18th floor of the Dirksen Federal Building. At that time, Pascal again indicated that he wanted to cooperate, and it was generally agreed that Pascal would work with Mr. Bushendorf's group. Thompson testified that although he did not work personally with Pascal he would have wanted to.

On July 20th, Pascal met with Agent Edmund Irvin and discussed the topic of cocaine and the Chicago Board Options Exchange. Pascal at that time indicated that he had not worked with the CBOE for approximately six months but did give to Irvin eight names of individuals he believed were familiar with or dealing in cocaine. On July 25th, Pascal called the Drug Enforcement Administration and on July 26th he met at the Federal Inn, a restaurant, with Agents Irvin and Thompson. On August 5, 1978, Mr. Thompson indicated that he wanted the name of Pascal's source in Florida and Pascal gave him that individual's name. At that point, Agent Thompson told Pascal that he was "80% of the way there" in fulfilling his promise to cooperate.

In early August of 1978, Pascal met again with representatives of the Drug...