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United States v. Martin

January 23, 1967

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
WILLIAM MARTIN AND PRINCE PARKER, DEFENDANTS-APPELLANTS



Hastings, Chief Judge, Duffy, Senior Circuit Judge, and Kiley, Circuit Judge.

Author: Duffy

DUFFY, Senior Circuit Judge.

The indictment herein contained four counts. Counts 1 and 2 charged both defendants with the sale and possession of a narcotic drug on January 11, 1965. Counts 3 and 4 charged both defendants with the sale and possession of a narcotic drug on January 26, 1965. The jury returned a verdict of guilty as to both defendants on all counts. A judgment of conviction was entered.

United States narcotics agent Turnbou testified that on January 11, 1965, he and an informer, Kathryn Bullock, met at a restaurant and then proceeded to an address on South Wells Street in the City of Chicago where they met the defendant Martin in his apartment. After some discussion as to the price of heroin, Turnbou gave Martin $625. Martin counted the money and then said "Go back to the house and wait for a phone call from Prince after it gets dark."

Agent Turnbou and Kathryn Bullock proceeded to her apartment on South Wentworth Street, Chicago. Turnbou told her he desired to listen to the expected telephone conversation. This was agreeable to Bullock and she showed Turnbou the location of the extension telephone.

Defendant Parker called and agent Turnbou, listening in on the extension phone, heard Parker say, "Hi, Bert, this is Prince. Meet me in about fifteen minutes at McDonald's on 71st Street."

Turnbou and Kathryn Bullock then proceeded by automobile to 71st Street and Vincennes where defendant Parker met them and stated "I've got the package and I am supposed to give it to Kathryn, Bert. Let's go to your house. I don't like the idea of sitting on the street in an automobile with an ounce on me. We can settle it there." The three then went to Kathryn Bullock's apartment where defendant Parker delivered 25.52 grams of heroin hydrochloride.

On January 26, 1965, agent Turnbou and Kathryn Bullock again met and conversed with defendant Martin at his apartment. Turnbou stated he wanted to obtain another ounce of heroin. Martin replied "Well, stuff is real scarce around here now, and the best I can do is $725 an ounce." Turnbou finally agreed to the price and handed Martin $725. Martin then directed them to "go home and wait for a call."

Turnbou and Bullock proceeded to her residence, and Turnbou again told her he wanted to listen to any telephone call which she received, to which Bullock agreed. Parker called. Turnbou, listening in on the extension phone, heard Parker say "Bert, meet me in half an hour at 63rd and Stewart." Turnbou and Bullock then proceeded by automobile to 63rd and Stewart where defendant Parker handed Turnbou a clear plastic bag which contained 25.09 grams of heroin hydrochloride.

The principal point urged by appellants for reversal is an alleged error in the receipt in evidence of testimony by agent Turnbou as to conversations overheard on the telephone between defendant Parker and informer Bullock. It is further argued that permission to listen was not given by Bullock as a matter of law because she was working under coercion.

It is further argued that the information used was received in contravention of Illinois state law. Reliance is had on a decision of the Supreme Court of Illinois -- People of the State of Illinois v. Kurth (1966), 34 Ill.2d 387, 216 N.E.2d 154.

In Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957), reh. den. 355 U.S. 925, 78 S. Ct. 363, 2 L. Ed. 2d 355, the Supreme Court stated the issue in that case to be, page 107, 78 S. Ct. page 162 -- "This case concerns the issue of whether the contents of a communication overheard on a regularly used telephone extension with the consent of one party to the conversation are admissible in federal court." [Footnote omitted] The decision was that such evidence is admissible.*fn1

Before and since the decision in Rathbun, this Court has repeatedly held that testimony relating to telephone conversations overheard with the consent of a party thereto is admissible. United States v. Kountis, 7 Cir. (1965), 350 F.2d 869, 870, cert. den. 382 U.S. 980, 86 S. Ct. 554, 15 L. Ed. 2d 470;*fn2 United States v. Campbell, 7 Cir. (1964), 337 F.2d 396, 398-399, cert. den. 379 U.S. 983, 85 S. Ct. 694, 13 L. Ed. 2d 573; United States ex rel. Dixon v. Pate, 7 Cir. (1964), 330 F.2d 126, 127-128, cert. den. 379 U.S. 891, 85 S. Ct. 165, 13 L. Ed. 2d 95;*fn2 United States v. Williams, 7 Cir. (1963), 311 F.2d 721, 725, cert. den. 374 U.S. 812, 83 S. Ct. 1703, 10 L. Ed. 2d 1035; United States v. Bookie, 7 Cir. (1956), 229 F.2d 130, 132; United States v. White, 7 Cir. (1956), 228 F.2d 832, 834-835.*fn2

There is no evidence in this record which would, in any way, indicate that informer Bullock was acting under coercion or duress. Any inference to the ...


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