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United States v. Kane

decided: January 27, 1984.


Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 CR 195 -- Joel M. Flaum, Judge.

Wood and Posner, Circuit Judges, and Dumbauld, Senior District Judge.*fn*

Author: Wood

WOOD, Circuit Judge.

This story of narcotics peddling involves defendants traveling between Canada and the United States who are a little more sophisticated than defendants in the ordinary local narcotics case, but the issues are not. Defendant Kane questions the admission of evidence relating to his character and prior crimes, and the admission of certain prior statements he made to an undercover agent without his counsel being present. Defendant Scott questions the sufficiency of the evidence and joins in Kane's objection to the same evidence of Kane's prior statements to an undercover agent because of its impact on his own defense.*fn1 We affirm.

Kane and Scott, along with Robert Kellar and Gerard Madden, were charged on April 19, 1982 in a two count indictment with conspiring to possess with intent to distribute cocaine and to distribute cocaine in violation of 21 U.S.C. § 846 (Count I), and with distributing and causing to be distributed approximately one kilogram of cocaine in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2 (Count II). Kellar and Madden pleaded guilty and are not involved in this appeal. A jury found Kane and Scott guilty on both counts.*fn2


The Facts

Since sufficiency of the evidence is questioned, we summarize the facts in some detail. The story began in January 1982 in Toronto, Canada when Kellar inquired of Constable MacAulay, an undercover drug investigator for the Royal Canadian Mounted Police, whether he was interested in obtaining some "coke." The constable responded that he was, if it was of good quality. Kellar suggested that the constable meet with "the people." "The people," Kellar said, were not interested in an initial test sale of a few ounces, but would deal only in "keys," or 2.2 pounds of substance. Several weeks later the constable met Kellar again. Kellar advised the constable that his source was located near Chicago's O'Hare Airport. The minimum quantity "the people" would bother with was one pound for $40,000. Later, in a series of meetings and calls, the constable and Kellar worked out the details for a meeting to complete the transaction in March in two Chicago hotels. There was also a third hotel involved, but it was used only by undercover agents.

Upon his arrival in Chicago, the constable met with federal Drug Enforcement Administration (DEA) agents at the O'Hare Hilton Hotel to plan the snare. One agent assumed the role of a courier for the narcotics, and another the role of a moneyman. They left the O'Hare Hilton with the constable for the defendants' hotels. Upon arrival, the constable contacted Kellar, who informed him that he had been unable to contact his man, but agreed to go look for him since the constable was ready to do business.

DEA agents followed Kellar from the hotel to a residence. Kellar eventually emerged from that residence with Scott, and two of them drove off. They stopped at two restaurants and then returned to one of their hotels. Kellar got out, and Scott drove alone to a store, came out with a grocery bag, and drove away.

Meanwhile, back at their hotel, Kellar gave the constable the news that he had met with his people and that "all is well." Kellar and the constable then left for the second of the defendants' hotels, where they met with the "moneyman" and the "courier" to check the money. Then it was back to the other hotel again for the constable and Kellar, accompanied by the courier. There in the parking lot Scott reappears, and Kane, wearing a white trench coat, appears on the scene for the first time. Kane removed a gym bag from the trunk of the car in which he had arrived, entered the hotel, and registered under an alias using a false address from Atlanta, Georgia. Kane lived in Miami, Florida.

In the hotel, Scott and Madden met Kellar in his room and then went down to the hotel lobby. All the defendants, Kane, Madden, Kellar, and Scott, met and conversed for a few minutes in the lobby. When that meeting broke up, Kellar and Scott went to the room occupied by the constable and the courier to work out further transaction details. Kellar and Scott told the constable the "stuff" was already in the hotel. A little later, Kane, Madden, Kellar, and Scott gathered together again in one of the hotel rooms. In a few minutes, Kane, Madden, and Scott stepped into the hall. Kane was still wearing his white trench coat, which he demonstrated was not one you could ordinarily find at a local shopping center, as there were numerous special pockets sewn into the inside lining. Kane traded coats with Madden. Madden went alone in his borrowed coat to the other hotel and began to count the cash, $80,000, with the moneyman.

Kellar and Scott, who had remained, were just outside the door, but Scott left and returned carrying an ice bucket. He entered the room, dumped out the ice and produced the cocaine. It was tested for quality. The constable said he was satisfied and would advise the moneyman at the other hotel, where Madden had gone, to pay the price. Other agents then entered the room and arrested Scott and Kellar. A short time later, back at the other hotel, Madden stuffed the $80,000 in the numerous inside pockets of the white trench coat. In showing off the coat to the constable, Kane explained that they were all professionals and would be happy to do business with them in the future. Perhaps Madden has now changed his mind about that. He was promptly arrested by a different type of professional waiting just outside the room. The money was retrieved from the many pockets. Meanwhile, Kane had returned to the lobby of the other hotel where he was the last to be arrested. All four defendants were then transported to the federal building and the three-hotel narcotics escapade came to a close.

The defendants were given the Miranda warnings and processed. Kane was put in a holding room. Agent Sack went to the holding room after Kane indicated he wanted to call his wife. The agent asked Kane how he was doing. Kane's response was: "By now you have checked me out and you know I am pretty big." Kane went on to say that he had been in business for a long time and was now concerned about the safety of himself and his family. In addition, he discussed his connections with Colombians and Cubans, which arose because as a mechanic he repaired their boats. For the most part, Kane was telling the agent nothing new. Evidence was offered at trial by another undercover agent who testified that in a 1980 ...

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