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September 16, 1996


Appeal from the Circuit Court of Du Page County. No. 92--CF--1104. Honorable Thomas E. Callum, Judge, Presiding.

Rehearing Denied November 5, 1996. Released for Publication November 5, 1996.

The Honorable Justice Inglis delivered the opinion of the court: Bowman and Doyle, JJ., concur.

The opinion of the court was delivered by: Inglis

JUSTICE INGLIS delivered the opinion of the court:

Defendant, Raymond Siwek, appeals his conviction of two counts of possession with intent to distribute cocaine in violation of section 1401 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 1401). Defendant also appeals the denial of his motion for a new trial. We affirm.


The following background is taken from the hearing on defendant's motions to suppress evidence and from his trial. Defendant joined the Chicago police department in 1968. From 1976 to 1981, defendant worked in the gang crimes unit, involved with gangs and narcotics. Later, he was transferred to the organized crime division, where he was involved in investigating and arresting large-scale drug dealers. In 1984, defendant became a detective and worked on narcotics-related homicides. Defendant served two years on a federal homicide drug task force, after which he was transferred to property crimes in 1989. He was working in property crimes up to the time the events at issue in this case occurred.

While employed by the Chicago police department, defendant also served in the National Guard, where he met Brian Marchese. In March 1992, Marchese was arrested and charged with driving on a suspended license. Marchese contacted defendant and asked him for help on that case. Defendant referred Marchese to another detective who enlisted Marchese as a drug informant. Marchese, however, never panned out as an informant for the Chicago police department.

On April 6, 1992, Marchese contacted Larry Wiess and offered to get him drugs. Wiess was an undercover agent for the Du Page Metropolitan Enforcement Group (DUMEG). Wiess and Marchese attempted to complete several transactions during the next month. Although the deals were never completed, Marchese alerted Wiess about the existence of a possible buyer from Chicago who would want a kilogram every week-and-a-half.

Marchese arranged to purchase cocaine from Wiess on May 6, 1992. Before the meeting, Marchese went to defendant's home and obtained $12,500 in cash. Marchese testified that defendant said that $2,500 was his own money, $10,000 was from a friend, for whom he would be purchasing the cocaine, and that $500 was included as his commission for the deal. Marchese promised to return to defendant's home by about 11:30 that morning.

Marchese then called Wiess and told him that he had the money and wanted to buy a half-kilogram of cocaine. When they met, Marchese told Wiess that he would take the cocaine to the person who had provided the money. Marchese handed the money to Wiess. Wiess handed Marchese the cocaine in exchange. Marchese was then arrested by DUMEG agents at about 11 a.m. on May 6, 1992.

The agents took Marchese to the Bloomingdale police department. At about noon, Marchese called defendant and the conversation was recorded. Near the phone was a sign stating that every phone call was recorded. Marchese, who does not read well, testified that he could not and did not read the sign. He stated, however, that he was aware that the conversation would be taped because he learned this from a previous arrest at the station. During the conversation, defendant asked Marchese if he had lost "that," which Marchese took to mean the money, and whether he had been "set-up."

Another DUMEG agent, Robert Guerrieri, testified that he could hear Marchese's end of the conversation. Guerrieri, however, did not realize at that time that the phone call was being recorded, nor did he listen to the recording of the call between Marchese and defendant. Guerrieri apparently did, however, communicate his observations to Wiess.

On May 6, Marchese was told that he was being charged with a Super Class X felony which would carry a mandatory minimum prison sentence of 12 years. He was offered consideration, however, if he agreed to cooperate. Marchese identified his money source as a Chicago policeman, but ...

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