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United States v. Escobedo

June 30, 1970


Castle, Senior Circuit Judge, Cummings and Kerner, Circuit Judges.

Author: Cummings

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 Hernandez*fn1 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 ...

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