Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 CR 106 Prentice H. Marshall, Judge.
Clark, Associate Justice,*fn* Sprecher, Circuit Judge, and Beamer, District Judge.*fn**
BEAMER, District Judge. Defendants were charged along with four other persons in a four-count indictment with violations of 21 U.S.C. §§ 841 (a)(1) and 846.*fn1 Count I charged Ernest Infelice, Mario Garelli, Chester Garelli, Frank Sarris, Ernest Brown and James McGarry with conspiracy to distribute heroin and to possess heroin with intent to distribute in violation of §§ 841(a)(1). The remaining counts charged Infelice, the two Garellis and Sarris with distributing 1.05 and 275.96 grams of heroin on April 15, 1972, and 293.3 grams of heroin on April 27, 1972. Appellants Infelice and Mario Garelli were found guilty on all four counts after a court trial and each was sentenced to concurrent terms of ten years on each count, together with mandatory parole periods on the substantive counts.*fn2
On this appeal both defendants contend that (1) heroin was not a "controlled substance" during the time alleged in the indictment because the schedules of controlled substances were not updated and published in the Federal Register as required by § 812(a); (2) the court used an improper standard in evaluating the evidence by refusing to consider tapes of "Kel-set" recordings which had been admitted into evidence; (3) there was insufficient evidence as a matter of law; and (4) the denial of Infelice's motions for polygraph testing of himself and a Government witness constituted an abuse of discretion. In addition, Garelli claims that the "Kel-set" evidence was procured in violation of Illinois law and should not have been admitted, that he was deprived of his sixth amendment right to confront witnesses with respect to the Government's key witness, and that the court erred in allowing voice identification of him based on statements allegedly received in violation of his rights to counsel and due process of law.
The Government's case was built upon the testimony of an informer, Robert Burks. Though the structure of defendants' challenges to the sufficiency of the evidence differ, the arguments of both defendants hinge upon their claim that the trial court improperly credited the testimony of Burks. Infelice argues that the evidence of the Kel-set tapes destroyed Burks' credibility while Garelli contends that the failure of Burks' memory on cross-examination rendered his testimony unreliable.
Burks testified that he had negotiations with Brown in October of 1971 during which he asked when he could see "Crip" (identified by Burks as Mario Garelli) to purchase narcotics. Brown said that he would take Burks' money to Crip and that Mario had said that "old friends would meet later." After learning from Brown that Crip worked at McCormick Place, Burks found Garelli there on October 20, 1971, and Garelli acknowledged that Burks was doing business with Brown. The next day Burks told Garelli that he feared Brown would rob him, and Garelli said Burks could deal directly with him.
On October 26, 1971, Burks saw Infelice, was directed to Garelli, and showed Garelli $5,000.00. Garelli asked how much Burks expected and was told "a pound and an eighth." Garelli said his "stuff" was good and that he was waiting for his connection. He told Burks to show Infelice the money because he "would be proud of you." When Burks showed the money to Infelice, Infelice told him not to part with it until he had "the dope in the palm of [his] hand."*fn3
During the week of November 7, Infelice told Burks that Garelli should have his package soon; Garelli later told Burks the same thing. Chester Garelli, who was with Mario, told Burks they had given Brown a fourth of a "kilo." On November 18, 1971, Chester told Burks that "the package" would arrive in ten days and that it would be very strong.
On January 5, 1972, Infelice told Burks that Mario and Chester had gone to New York to "cop" (which Burks explained as meaning a purchase of narcotics) and that Infelice himself had just returned from Florida where he had gone to "cop." He agreed to have Mario call Burks upon his return. On January 12, Infelice told Burks he had given Mario the phone number; Burks went to Mario, asked if he had been to New York to "cop" and Mario said he had gone but had gotten nothing. He assured Burks that he would be the first to know when Mario was able to obtain something. Burks again saw Mario on January 28, was directed to Chester, and obtained a package which proved to be ground glass. On February 2 Burks told Infelice that Chester had given him glass; Infelice said he couldn't understand it and that he knew Mario wouldn't give "bad stuff."*fn4
Chester called Burks on April 13, told him he had a package and asked Burks to meet him at the corner of Austin and Madison Streets. Chester was with Sarris, and Sarris told Burks he would sell a quarter kilo for $10,000.00. Burks requested a sample and Sarris said he would call the next day. Sarris delivered the package the next day and told Burks he was dealing with him on the strength of Mario and Chester. The sample contained heroin. On April 15 and 27 Sarris delivered packages to Burks containing heroin in excess of 250 grams each.
On May 12, Burks complained to Infelice about the quality of the heroin and Infelice said, "You know that we wouldn't do you like that, that we wouldn't give you no bad stuff."*fn5 Infelice said he would have Mario call Burks. On June 7, Infelice told Burks he had told Mario to call, that someone was messing with the package and that Mario wouldn't sell "bad stuff." Burks then went to Chester, told him the narcotics were bad and Chester asked Burks if he would think Chester and Mario were honorable if they gave him 45 "spoons" for $3,000.00. Chester said Mario would have Sarris contact Burks and that Chester would stitch the bag to insure against tampering. Two days later Burks conversed with Sarris who said the price would be $5,000.00. No transaction was ever consummated from these final negotiations.
Though Burks was surveilled on several of these occasions, his testimony as to the conversations which occurred was in the main uncorroborated. On certain occasions when he was equipped with a "Kel-set" the machine malfunctioned; the court found the tapes to be very poor in quality, with long periods of hissing and silence.
Three of defendants' claims are interrelated. The Government introduced into evidence the tape recordings of conversations between Burks and others made by use of the Kel-set radio transmitter concealed on Burks and taped by agents from a radio receiver. Defendants contend that the trial court used an improper standard in evaluating the evidence by refusing to consider these tapes where they allegedly impeached the testimony of Burks. Reliance is placed on the district judge's statement that he "virtually disregarded them." The court, defendants contend, effectively struck relevant evidence from the record. We do not read the court's comments as a reflection upon the admissibility of the taped conversations, but only upon the probative weight he chose to give them. It is clear from the trial judge's comments that he did not cavalierly disregard the evidence as defendants suggest. The court specifically mentioned inconsistencies between the tapes and Burks' testimony and discussed those parts of Burks' testimony which constituted added material from what appeared on the tape. The court plainly indicated that the tapes were offered as independent evidence of the conversations monitored, that at least in certain instances they contradicted the Government's case and that, especially in light of the absence of explanation, the absence of words on the tapes constituted evidence they were not spoken. However, because of the poor quality of the tapes, with long periods of unexplained hissing and silences, and the failure of the ...