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United States v. Holtzman

April 9, 1971

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARVIN M. HOLTZMAN, DEFENDANT-APPELLANT



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

Author: Knoch

KNOCH, Senior Circuit Judge.

Plaintiff-Appellant, Marvin M. Holtzman, has taken this appeal from judgments of conviction in a jury trial on six counts of a 12-count information charging defendant and one John Bell with six violations of Title 21, U.S.C. § 331(q) (2), 79 Stat. 232 by unlawful sale, delivery or other disposition of a depressant or stimulant drug and six violations of § 331(q) (3) unlawful possession of a depressant or stimulant drug for sale, delivery or other disposition. Six different transactions were involved over a period of 10 months.

The jury found defendant guilty on six counts involving transactions on March 28, April 30 and May 21, 1968. He was sentenced to one year's imprisonment on counts seven and nine, the sentence on count nine to run consecutively with that on count seven, and three years' probation on counts eight, ten, eleven and twelve to run concurrently with each other, to begin on completion of the sentence on count nine.

The co-defendant, John Bell, pleaded guilty. He was a witness at the trial.

Briefly, the evidence showed that on or about July 15, 1967, believing Bobby Hogancamp, an agent for the Federal Bureau of Drug Abuse Control, and Kenneth Knorr, also an agency employee, to be truck drivers, the co-defendant, Bell, agreed to sell them some "pills", kept them waiting near 42nd and Halsted Streets in Chicago, Illinois, while he asked defendant who was a bartender in the Horn Palace Bar on Halsted Street for pills. Defendant agreed to sell some if Bell would come back later. The two agents went to Stanley's Bar where Bell promised to call them. Bell testified that he returned to the Horn Palace and bought about 2000 "pills", which defendant took from beneath the bar. Agent Hogancamp testified that Bell on that same night sold him and Knorr 1000 amphetamine capsules and 1000 amphetamine tablets. Bell said that defendant cautioned him to be careful to whom he sold, and Bell had replied he would sell them to truck driver friends.

Again, on March 20, 1968, Bell, after calling defendant, agreed to sell Agent Hogancamp more pills. They met at Bell's place of employment and drove in separate cars to the Horn Palace. Bell, entering alone, bought 2000 pills, again being cautioned about customers and again stating these were for truck driver friends to which defendant said "all right". While Bell was inside Agent Hogancamp saw defendant come out, look up and down the street, then directly at Agent Hogancamp, before going back in. Agent Romaine Thornton also observed that. Bell returned. He and Agent Hogancamp went to Bell's place of employment where 2000 amphetamine tablets were sold to the agent.

Another sale occurred on March 21, 1968. Again Bell said he checked with defendant before agreeing to the sale, again defendant urged Bell to be careful to whom he sold and said "all right" when told these were for truck driver friends. Agent Hogancamp identified the approximately 3000 amphetamine tablets which Bell delivered to him on March 21, 1968. Agent Thornton, on surveillance, corroborated various details of the testimony as to the meetings, travel, entry and departure of Bell from the Horn Palace carrying a bag and entering Agent Hogancamp's car.

On March 28, 1968, similar arrangements were made except that after Bell paid defendant, defendant asked him to wait at the back door, which defendant did after explaining the delay to Agent Hogancamp. Bell and defendant went to an automobile which bore a license registered in defendant's name, which Agent Hogancamp said defendant appeared to unlock and from which Bell said defendant took a bag. He gave this to Bell who returned to the Agent to whom he sold the bag which Agent Hogancamp described as containing about 3000 amphetamine tablets and 2000 amphetamine capsules.

Another sale occurred on April 30, 1968. Bell agreed to meet the Agent in an alley on West 48th Place. Bell testified that in response to his call, defendant delivered 2000 pills to Bell at the alley. After defendant had left, the agent arrived and the sale was completed there. Other agents testified to seeing defendant leave the bar, drive to this vicinity and meet with Bell.

On May 21, 1968, the agent called Bell and asked for 1000 pills in a hurry. Bell called defendant who agreed to deliver them at the home of Betty Poland on West 48th Place. Defendant was seen leaving the bar and driving off. His automobile was seen parked next to Mrs. Poland's address. He was seen getting out of the car walking toward the house and in a few minutes back to his car and then to the Horn Palace. Agent Hogancamp called Mrs. Poland, went to her home, received a bag of 2000 tablets in exchange for $140 of official government funds. Later Bell picked up the $140 at Mrs. Poland's and then paid defendant at the Horn Palace.

June 14, 1968, Agent Hogancamp arrested defendant at the Horn Palace. At that time the defendant had on his person a $50 bill whose serial number identified it as one of those given Mrs. Poland for the pills on May 21, 1968.

In addition to Agents Hogancamp and Thornton, Special Agents John William Chmelik and Phillip Vernon Fisher, who had observed various aspects of the above described ...


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