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United States v. Spain

decided: May 25, 1976.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HUBERT SPAIN, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 75 CR 306 THOMAS R. McMILLEN, Judge.

Fairchild, Chief Judge, Cummings and Tone, Circuit Judges.

Author: Tone

TONE, Circuit Judge.

The defendant was convicted in a jury trial of distributing controlled substances in violation of 21 U.S.C. ยง 841(a)(1). On appeal, he argues that entrapment was established as a matter of law and that the prosecutor's closing argument was improper. We affirm.

The defense and prosecution offered sharply differing versions of the facts. We must assume for purposes of appeal that the jury accepted the government's version, which was as follows: Drug Enforcement Administration agents learned that defendant, who operated a pharmacy on Chicago's south side, had ordered large amounts of quinine, which is not a controlled substance but which is sometimes used to dilute heroin. DEA Agent Kenneth L. Rhodes called defendant by telephone and, without identifying himself, said he wanted to talk to defendant about "some Q," meaning quinine. Defendant told him to come to the pharmacy. Rhodes did so the next day and offered to trade quinine for "uppers . . .. That is some fat pills." Defendant said he could get as much didrex, a controlled substance, as Rhodes wanted. Defendant examined bottles of quinine Rhodes had brought with him and asked whether Rhodes had any sealed bottles. Rhodes replied that he did.

The next day Rhodes again called defendant and agreed on the specific terms of a barter of quinine for didrex tablets. That afternoon the transaction was consummated, future barters were discussed, and it was arranged that a messenger, who turned out to be Agent Kenneth Labik, would handle future transactions on behalf of Rhodes.

Subsequent transactions during the next month followed the same pattern, except that in some instances controlled substances other than didrex were received for the quinine. The last of these transactions was initiated by defendant, who telephoned Agent Labik and said he "had 500 tablets of didrex for sale for 50 ounces of quinine" and agreed to meet Labik in a parking lot to make the exchange. At that meeting defendant delivered the didrex to Labik and was immediately thereafter arrested. After being duly informed of his constitutional rights, defendant at first said he was using the quinine to prepare a hair product, but then admitted that he was selling it to narcotics dealers. There was no evidence of other prior criminal activity by defendant.

Defendant's version of the facts was markedly different from that of the agents. He testified that, in their first meeting, Rhodes identified himself and "said that he wanted to catch this white fellow and his friends that are selling, pushing pills to the black kids in the community and he needed my cooperation." Defendant testified that he at first declined but after being threatened with harassment agreed to cooperate, following which Rhodes gave him pills with instructions to give them to the suspected pusher in return for quinine. Defendant's account of the conversation was corroborated by a witness who testified that he overheard it while repairing a stamp machine nearby.

Later, defendant testified, a stranger delivered to him at the pharmacy a package containing controlled substances which he later delivered to Labik in exchange for quinine. This was corroborated by a witness who testified that he was sitting in an automobile smoking a marijuana cigarette when three men approached him and told him they were police and would arrest him unless he delivered a package to the pharmacy of defendant, whom he did not know, and that he then delivered the package.

Defendant's account of the arrest also differed sharply from the accounts of the agents. He testified that a dirty cigar picked up from the ground was shoved into his mouth by one of the agents, that the agents threatened to kill him, and that one held a gun to his head. He denied making any admission to the agents. These assertions were first made at the trial. No motion to suppress was ever made. The agents testified that they did not assault or threaten defendant.

There were other disputed issues of fact of less significance, such as whether quinine is difficult to obtain in large quantities and whether defendant had a legitimate use for quinine in connection with experiments he was conducting to develop a hair grooming product. The jury was justified in resolving these issues, like the other factual issues, against defendant.

1.

We can quickly dispose of defendant's argument that the testimony of the agents was inherently incredible because it was conflicting with respect to details of the arrest. Agent Weinstein testified that he and Labik "had guns" on defendant (who was armed) and that defendant admitted using the quinine to dilute heroin seconds after saying he was using it for a hair preparation. Labik testified that he "never placed a gun on" defendant and that defendant changed his story after 20 minutes of conversation. The jury could have found that these discrepancies, which concerned collateral matters, were the result of mistake. Inconsistencies in the government case do not require an inference that the government agents perjured themselves. Chapman v. United States, 408 F.2d 11, 12 (2d Cir. 1969). Even if the jury found that an agent had deliberately testified falsely on a collateral matter, it could still accept the substance of his testimony on the issues in the case. See ...


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