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United States v. Guevara

decided: May 14, 1979.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
PETER GUEVARA, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77 CR 143 -- Thomas R. McMillen, Judge.

Before Sprecher, Tone and Bauer, Circuit Judges.

Author: Bauer

Defendant-appellant Peter Guevara appeals from his conviction for possession and distribution of heroin in violation of the federal narcotics laws. First, Guevara contends the evidence adduced at trial was insufficient to prove beyond a reasonable doubt that he was not entrapped by agents of the federal government to engage in the narcotics transaction which resulted in his arrest and subsequent conviction. Second, he contends the district court erred as a matter of law in allowing certain hearsay statements to be introduced into evidence over his objection. We are not persuaded by the arguments advanced in support of these contentions and accordingly, affirm the judgment appealed from for the reasons set forth below.

I.

The defendant was arrested along with four other individuals on February 16, 1977, in connection with a negotiated sale of narcotics to agents of the Drug Enforcement Administration (hereinafter DEA). Subsequent to his arrest, a federal grand jury returned a two count indictment against the defendant, charging him with the possession and distribution of approximately 1800 grams of heroin in violation of Title 21, United States Code, Section 841(a)(1). The defendant entered pleas of not guilty to both counts, interposed a defense of entrapment, and proceeded to a jury trial upon the charges. The jury returned a verdict finding the defendant guilty as to both counts of the indictment, and the court imposed a sentence of imprisonment for a term of three years, to be followed by a three year special parole term. The defendant subsequently appealed to this court.

Before addressing the defendant's first argument on appeal concerning the issue of entrapment, it is necessary to explicate in appropriate detail the circumstances leading up to the defendant's arrest. The evidence adduced at trial on the issue of entrapment, viewed in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 86 L. Ed. 680 (1942), showed that during the early months of 1977, an individual known as Ronald Segal owned International Control, Ltd., a business located in Chicago, Illinois, and engaged in the sale of security alarms and other similar protective devices. During this period, Segal was also employed by the DEA as a confidential informant. Early in January, 1977, Segal hired James Antee, a nephew of the defendant, to work for him as a commission salesman. At the conclusion of a one week sales training program conducted by the company, Segal approached Antee and inquired whether Antee could locate a source of supply for cocaine. Segal also showed Antee a "flash roll" representing a considerable sum of money and a valise containing a substantial quantity of pills.

On January 14, 1977, at approximately 11:30 p. m., Antee telephoned Segal from the defendant's residence, ostensibly for the purpose of obtaining a price quotation for an order of eighteen security alarms which the defendant indicated an interest in purchasing after seeing Antee's sales presentation. Upon receiving a price quotation for the prospective order, Antee then inquired whether Segal remained interested in purchasing a substantial quantity of narcotics. When Segal expressed interest, the defendant entered the telephone conversation and arranged to meet that evening at Segal's office to negotiate the purchase of cocaine the defendant claimed to have available for sale.

Segal then telephoned DEA Agent Albert Nedoff at his home in Indiana to relate the details of his telephone conversation with the defendant. Agent Nedoff explained to Segal that he would be unable to arrive at Segal's office in time for the meeting with the defendant, and instructed Segal to negotiate with the defendant, but to refuse to purchase any narcotics from him at the meeting. Nedoff further instructed Segal to attempt to arrange a future transaction, and to report back to him concerning the details of the meeting.

Two hours later, the defendant arrived at Segal's company premises with three other persons: James Antee, Jose Espinoza, and an individual referred to as "John". The defendant asked Segal about the quantity of cocaine desired, indicating he had approximately 100 grams available for sale. According to Segal, Espinoza gave the cocaine to the defendant, who then handed it to Segal. Segal conducted a field test on the substance, but, acting under the instructions of Agent Nedoff, declined to purchase the cocaine, claiming it lacked suitable quality. Segal then stated he was interested in purchasing larger quantities of better quality heroin or cocaine, and mentioned his acquaintance with an individual named "Alphonse", who represented a drug purchasing syndicate based in Denver, Colorado. Segal offered Espinoza some money to compensate him for his efforts, but it was refused. The defendant apologized to Segal for the inconvenience of the late hour, and promised he would contact a source to arrange the purchases Segal desired. As the meeting concluded, Segal offered the defendant $5,000 to obtain a source of narcotics.

The next morning, Segal telephoned Agent Nedoff to report the details of his meeting with the defendant and his associates. However, Segal did not inform Agent Nedoff until the date of the arrest that the defendant had been offered $5,000 to locate a source for narcotics.

A series of telephone conversations between Segal and the defendant occurred during the next several days. On January 21, 1977, at approximately four or five o'clock in the afternoon, Segal telephoned the defendant from his company office. Using a speaker telephone system, Segal introduced the defendant to DEA Agent Albert Nedoff, who was posing as "Alphonse", the individual to whom Segal had referred at his first meeting with the defendant. Also present during the telephone conversation was DEA Agent John Bott, although this fact was not disclosed to the defendant. Agent Nedoff asked the defendant whether they could do "business", and the defendant responded affirmatively. Nedoff indicated he was only interested in purchasing kilos of heroin and the defendant replied that an arrangement for such quantities would be possible, although it would first be necessary to build trust between the parties based upon smaller quantities. Nedoff concluded the conversation by telling the defendant to contact Segal when he was ready to do business.

On February 11, 1977, the defendant and Nelson Ortiz made an unsolicited visit to Segal at his company offices for the purpose of investigating Segal and his business before engaging in any drug transactions. The parties discussed qualities, quantities, and prices for subsequent transactions. During the next few days, several telephone calls between Segal and the defendant were exchanged concerning the details of the proposed heroin transactions.

Segal telephoned the defendant at his place of employment on February 16, 1977. Using the telephone speaker system, with Agents Bott and Nedoff present, Segal asked the defendant whether the heroin would be delivered. The defendant replied that the heroin would be delivered that day. When asked about the quantity involved, the defendant responded that the first delivery would consist of one kilo, and if the delivery went smoothly, four additional kilos could be expected.

At approximately 4:00 p. m. that afternoon, the defendant telephoned Segal and informed him that the delivery was in progress and that it could be expected to arrive around 5:20 p. m. At approximately 6:15 p. m., Segal again called the defendant to inquire about the delivery. The defendant urged Segal and Nedoff to continue to wait while he attempted to determine the cause of the delay. Finally, around 7:20 p. m., Ortiz arrived outside Segal's business offices with several other persons. These persons waited in their automobiles, while Ortiz entered the premises of Segal's company. In Segal's ...


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