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May 6, 1968


The opinion of the court was delivered by: Marovitz, District Judge.


Defendants' Post-trial motions

A joint trial before this Court, without a jury, was held several weeks ago, in 67 CR 248. Defendant Curry stipulated to his participation in the offenses charged in the indictment, but raised the defense of entrapment. Defendant McCorkle denied his guilt from the witness stand. We made findings of guilty as to both defendants. Both have now presented their post-trial motions.

Defendant Curry's Motion for Judgment of Acquittal

Curry's motion for a judgment of acquittal is essentially hinged upon two crucial legal defenses — that of entrapment, and that of inordinate and prejudicial delay between the time of the offenses and the date he was notified of the instant indictment.

Earlier, Curry moved to dismiss the indictment (and also No. 67 CR 254) on the latter ground, alleging that he had been denied due process of law, and his Sixth Amendment right to a speedy trial, by the delay. In a Memorandum Opinion dated December 8, 1967, United States v. Curry, 278 F. Supp. 508, 510 (N.D.Ill. 1967), we reviewed the facts, as known at that time, and concluded that defendant had not made a sufficient showing of prejudice to support either his Fifth or Sixth Amendment arguments. In an affidavit in support of his motions, Curry suggested that he was prejudiced, inter alia, by his inability to locate a witness by the name of Jones "who was the apparent owner of a restaurant at 79th and Halsted in the City of Chicago". In our Opinion, we indicated that Curry had made an insufficient showing of prejudice, in part because he had not suggested why Jones was a material witness, or to what he would testify. But we stated that should Curry be able to amplify the prejudicial effects of delay at a later time, he could renew his motion for our consideration.

Subsequent events have amplified defendant's need for access to Jones. Those events and all of the facts relevant to the case, when considered, will show that the entrapment and delay issues are factually interrelated, and must be consolidated for discussion purposes. That is because Curry charges he was entrapped by Jones, a government informer, and to a lesser extent by Narcotics Agent Frank Boyles, but that the delay involved in notifying Curry of the charges deprived him of the opportunity to locate Jones, whose testimony would have been crucial to the entrapment defense.

Curry admits his participation in the sales of heroin to Agent Boyles on January 20 and February 17, 1966, as charged in the indictment. He denies receiving any money from the transactions, but alleges that he merely introduced Boyles to the person actually selling it (McCorkle).*fn1 He also admits supplying marijuana to Agent Boyles on December 16, 1965, January 5, 1966, and January 6, 1966.

According to Curry, one day Jones asked him if he could get any marijuana for Jones' "boss" Frank (who subsequently turned out to be Agent Frank Boyles). Curry apparently was somewhat taken aback since Jones had been his supplier. So he expressed his incredulity and said he did not know where to find any marijuana since he came to Jones for his own. Jones apparently explained that his supply of marijuana was not sufficient to satisfy the quantity desired by Frank. Jones allegedly asked him several more times to find some marijuana for Frank, and Curry repeatedly told him he had no sources other than Jones himself.

Curry was self-employed as a peddler of clothes at the time. He bought clothes from retail and wholesale houses, and resold them to his customers. He testified that one of his customers, a man by the name of "Charles", owed him $80 in December, 1965. Charles allegedly told Curry he had found a supply of marijuana growing wild beside a South Side railroad track. With this knowledge, Curry thought he had found the way to receive his $80. He would get Charles' marijuana to Jones and Frank, collect his $80, and Charles would get the remainder of the money. Curry then told Jones he had access to a supply of unprepared marijuana. Curry delivered the marijuana to Jones who weighed and prepared it, and the sale was made to Boyles. However, in testimony not controverted by Boyles, Curry stated that Boyles indicated he did not want the full supply at the time of the initial sale. Therefore, according to Curry, in somewhat incredible fashion, Curry stashed the remainder of the marijuana in a stairwell of a housing project at 62nd Street and South Park. He gave no explanation why he took the marijuana to that location when he lived at 82nd and Ellis, and received it from Charles south of 62nd and South Park, somewhere near 71st and Jeffrey.

Boyles, who as "Frank", was at that time known to Curry as Jones' "boss" through Jones' introduction, arranged and consummated two more sales of marijuana with Curry, receiving the marijuana Curry had hidden. Curry testified he received no money from these sales, but there is no explanation as to who did ultimately receive Boyles' payment.

Later in January, Boyles asked Curry if he could get him any heroin. Curry allegedly told him he had no access to heroin, did not use it, and did not know where to find it. Boyles continued to ask Curry for heroin, so Curry told Jones and asked him whether he should help Boyles find some heroin. Jones allegedly told him to do so. Jones apparently knew of Curry's longtime acquaintance with McCorkle, stemming from their school days, believed that McCorkle had access to heroin, and suggested that Curry contact McCorkle to secure heroin. Curry had not seen McCorkle for quite some time and apparently did not know he dealt in narcotics, but eventually he did introduce Boyles to McCorkle, and on January 20 and February 17, 1966, the sales to Boyles took place. Curry testified that he received nothing from the transactions, and just helped Boyles because he had continually asked Curry to find heroin. In short, Curry said, after repeated entreaties from Boyles, he set up the introduction to McCorkle as an accommodation.

From the facts as related above, it appears that the presence of Jones at these proceedings could perhaps have cleared up some of the evidentiary voids that now exist. There was a tactical reason why Curry was not in a position to more fully amplify his need for Jones in his pretrial motion to dismiss. To state that Jones was needed to corroborate an entrapment defense would be to admit his participation in the offenses charged. Also, and perhaps even more important, Curry was not completely certain at that time that Jones had been a government informer. For whatever tactical reason, Curry's counsel was unwilling to disclose his client's hand in the motion — a perfectly proper position to take. But after we issued our ruling on December 8, 1967, in which Curry's motion to dismiss was denied, we held an informal pretrial conference on December 13, 1967, at Curry's counsel's request. Therein, he explained the importance of Jones' testimony, off the record, and expressed his uncertainty as to whether Jones, in fact, was a government agent. He explained that Curry, who had been out on bond in this case until arrested on another charge, had looked diligently for Jones, as had several of his friends, but he was nowhere to be found. The prosecutor refused to unequivocally disclose to the court whether Jones was an informer. We then instructed him to produce Jones at the trial for examination by Curry's counsel, if Jones was an informer. The government advised the Court that Jones would be produced if he was an informer.

But the prosecutor failed to produce Jones. On the eve of trial the government tendered its proposed stipulation of facts to Curry's counsel. It indicated that an "Ernest Jones" introduced Curry to Agent Boyles. That was the first direct indication by the Government that it knew anything about Jones, including his first name. Defense counsel understandably again inquired of the government what it knew of Jones. For the first time, the government admitted he was a government informer. Moreover, the government waited until the day of trial to reluctantly admit through its agents' testimony, that it had made absolutely no effort to locate Jones. Indeed, none of the three agents who testified even knew the defendant was looking for Jones, or were aware of the Court's direction to the prosecutor, and they admitted that the government had made no attempt to keep track of or locate him. In response to our expressions of dissatisfaction with the failure to produce Jones, or to look for him, as we previously directed, the prosecutor suggested that Jones was unimportant to the defendant, and was no more than a "red herring" to Curry's defense. Pursuant to our direction, the government then looked for Jones for a day and a half prior to the actual commencement of trial, but could find no trace of him.

During the trial, it came out that Jones not only was a government informer, but had been used to "make" cases for the government. He was out on bond on a federal complaint charging a narcotics violation, and under his arrangement with the Bureau of Narcotics, was led to believe his case would be dismissed if he provided the government with new cases. It was testified at trial that Jones did provide the government with at least three new cases, including this one, and the complaint against him was subsequently dismissed by the United States Attorney upon the recommendation of Narcotics Agent Connolly.

It should be evident from the foregoing factual summary that serious questions are posed by the instant motion, both with regard to entrapment and delay. However, we do not agree with defense counsel that entrapment has been established as a matter of law. Judge Learned Hand stated the classic definition of entrapment in the Second Circuit decision of United States v. Sherman, 200 F.2d 880, 882-883 (2d Cir. 1952):

  "Therefore, in such cases two questions of fact
  arise: (1) did the agent induce the accused to
  commit the offense charged in the indictment; (2)
  if so, was the accused ready and willing without
  persuasion and was he awaiting any propitious
  opportunity to commit the offense. On the first
  question the accused has the burden; on the
  second the prosecution has it."

The Supreme Court approved that definition when the Sherman case ultimately reached it after a new trial. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United ...

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