Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. 84 CR 20045 Harold A. Baker, Judge.
Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and GRANT, Senior District Judge.*fn*
GRANT, Senior District Judge.
A jury convicted defendant-appellant of conspiracy to distribute cocaine in violation of 21 U.S.C §§ 846, 841(a)(1) and 18 U.S.C. § 2. The jury acquitted him of a second court charging possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The court sentenced him to twelve years' imprisonment. We affirm the conviction, but remand the case for resentencing.
In October 1984, agents of the Illinois Department of Law Enforcement, Division of Criminal Investigation, were conducting an undercover narcotics investigation into the activities of Schiavone, a co-defendant in the instant case who pled guilty. The Department suspected Schiavone of narcotics trafficking in the Kankakee, Illinois area.
During the course of the investigation, agent Grant sought to purchase one kilogram of cocaine from Schiavone. When agent Grant refused to help finance Schiavone's purchase of the cocaine, Schiavone borrowed $25,000 from Savinski, a Michigan city, Indiana, friend who was the other co-defendant in this case who also pled guilty. Savinski learned of the purpose of the loan some days later and, when Schiavone appeared to be having trouble finding a supplier of the cocaine, Savinski suggested defendant-appellant Hamm.
Savinski contacted Hamm and told him Schiavone had a purchaser for ten kilograms of cocaine. Hamm later confirmed the availability of a quantity of cocaine and indicated that his source of the cocaine was "Columbians." Savinski passed this information to Schiavone who passed it to agent Grant.
On October 23, 1984, Schiavone and agent Grant met in a room at the Bradley, Illinois, Holiday Inn. They called Savinski at Gratty's, a Michigan City bar, to finalize their transaction. They informed Savinski that agent Grant wished to purchase one, rather than ten, kilograms of cocaine and that agent Grant did not want to travel from the Kankakee area to complete the deal. Savinski told Hamm, who was with him at Gratty's, about the changes in the plan. Hamm made a phone call and told Savinski that the changes were acceptable. Savinski called Schiavone a short time later and worked out the remaining details.
Hamm and Savinski met the next morning to leave for Kankakee. Hamm carried a duffle bag and asked Savinski if he wanted to check it before they left. Savinski declined. While Hamm and Savinski drove in Savinski's van to Kankakee, Schiavone and agent Grant awaited their arrival in the Bradley Holiday Inn.
At approximately 1:00 P.M., Savinski called Schiavone at the Holiday Inn and told Schiavone that they were waiting for him at the Bonanza Restaurant on Court Street in Kankakee. Schiavone left to meet them. Savinski waited for him in the restaurant. Hamm waited in the van. Schiavone met Savinski in the restaurant and, after briefly discussing the money still owed Savinski by Schiavone, the two went to the van where Schiavone met Hamm.
From the front passenger seat, Hamm handed the duffle bag to Schiavone who was sitting in the rear seat. Schiavone checked the contents and returned to agent Grant at the Holiday Inn to get the money. Whereupon agent Grant arrested him. A short time later, other agents arrested Schiavone and Hamm in the restaurant parking lot. In a search of the van subsequent to the arrest, agent King found the duffle bag which contained 994.1 grams of 78.8% pure cocaine.
Hamm's arraignment occurred on December 4, 1984. On January 3, 1985, all three defendants viewed a video tape of the arrest. On January 8, Hamm filed a Motion to Suppress the cocaine based upon the lack of probable cause for the search of the van and the coercion of Schiavone who told the agents where they could find the cocaine. On January 9, the trial court ordered that all pending motions would be heard on January 14, the day of trial.
At the hearing on the motions, the trial court denied Hamm's Motion to Suppress. When Hamm learned that his co-defendants had entered into plea agreements, he moved for a continuance of trial which the court also denied. Instead, the trial court delayed the jury selection and the beginning of the Government's case to allow Hamm ...