The opinion of the court was delivered by: EDELSTEIN
Cirilio Figueroa was originally indicted in June 1970, together with five codefendants in the Northern District of Illinois, Eastern Division, and charged with the violation of various sections of the narcotics laws. Thereafter, pursuant to Rule 21 (b) of the Federal Rules of Criminal Procedure, the trial of defendants Figueroa and Mr. Francisco Manuel Chacon (presently a fugitive) was transferred to this court. On October 13, 1971, a four count superseding information was filed charging Figueroa as follows:
Count 1: Facilitating the transportation of about 500 grams of heroin on February 19, 1970. (Title 21, U.S.C. Sections 173, 174.)
Count 2: transfer of about 500 grams of heroin on February 19, 1970, not in pursuance of a written order on a form issued by the Secretary of the Treasury. (Title 26, U.S.C. Sections 4705 (a) and 7237 (b));
Count 3: facilitating the transportation of about 500 grams of heroin on March 25, 1970. (Title 21, U.S.C. Sections 173, 174);
Count 4: transfer of about 500 grams of cocaine on March 25, 1970, not in pursuance of a written order on a form issued by the Secretary of the Treasury. (Title 26, Sections 4705 (a) and 7237 (b)).
Figueroa also was charged with aiding and abetting the commission of the substantive offenses. (Title 18, Sec. 2.)
The case was tried to the court on October 13, 20 and 21, 1971, after the defendant waived a trial by a jury. This court finds the defendant guilty on all four counts as charged. The court in arriving at its decision has carefully considered the testimony of witnesses and exhibits introduced into evidence, the extensive oral argument and proposed findings of fact and conclusions of law.
On February 19, 1970, Agents Dominic P. Petrossi, and Harry M. Fullett, members of the Chicago Regional Office of the Bureau of Narcotics and Dangerous Drugs, acting in an undercover capacity, accompanied Mr. Jose Josende from Chicago to New York to meet the defendant, Cirilio Figueroa. Jose Josende had previously sold heroin and cocaine to Petrossi in Chicago.
These agents secured a room in Queens County, New York, where Fullett remained while Petrossi and Josende continued into New York City to meet Figueroa.
At 163rd Street and Broadway, New York City, Josende entered a bar and placed a telephone call. Josende and Petrossi then left the bar and proceeded to a nearby street corner where they met and conversed with a third individual, Mr. Manuel Chacon. At approximately 2:30 p. m. Chacon placed a telephone call. Shortly thereafter the defendant, Figueroa, arrived in a motor vehicle. Chacon entered the vehicle which then left the area. It returned shortly thereafter. Then Petrossi and Josende entered the car where Figueroa was introduced to the agent as "Lazaro." (R. 21)
The vehicle, driven by Figueroa, circled the area and then finally parked. During this time Figueroa, Chacon, and Josende conducted a conversation in Spanish which Agent Petrossi could not understand.
Agent Petrossi interrupted the conversation to say that he was there to take care of business and return to Chicago. (R. 24) Figueroa then spoke directly to the agent in English, saying "I know you."
Thereafter Petrossi stated that the narcotics which he had purchased from Josende in Chicago had not been of satisfactory quality and that he, Petrossi, had asked to contact the New York source of Josende's drugs so that the source could guarantee the quality of drugs sold for Chicago distribution. (R. 24-28) Petrossi proposed a plan for future transactions whereby he would pay in advance for one-half of the narcotics purchased until Josende's delivery in Chicago. In Chicago Petrossi's men would determine the quality, after which Petrossi would pay Figueroa in New York. In this way neither Petrossi nor Figueroa would have to touch the narcotics. (R. 25-26)
Thereafter Figueroa, Chacon and Josende conversed again in Spanish, after which Josende inquired about the quantity of narcotics the agent wanted to purchase. Petrossi responded one kilogram of heroin, stating that he only wanted to pay for one-half. Chacon stated that he would obtain the narcotics from Figueroa and transfer them to Josende, who in turn would deliver them at the agent's hotel.
Petrossi asked for a telephone number where Figueroa could be contacted and was told by Figueroa that Josende would give it to him at the time the drugs were delivered, later that day. Petrossi asked whether there was pure cocaine available, and Chacon, after conversing with Figueroa in Spanish, stated that quality cocaine was not available but they expected that a supply would be forthcoming. (R. 13)
Thereafter Figueroa drove back to the area of 163rd Street and Broadway in New York City, where Petrossi exited the vehicle.
At approximately 5:45 p. m. that same day Josende delivered 495.7 grams of heroin (54.9%) (Ex. 2), a narcotic drug, (R. 162-165) to the agents in return for $13,500.
On March 25, 1970, Agents Petrossi and Fullett again traveled from Chicago and secured a room in Manhattan, New York. They met with Josende on Broadway at 163rd Street, New York City. The three men then proceeded to a nearby bar where they met with Figueroa. Petrossi, in the presence of Fullett and Josende, conversed with Figueroa in English about Figueroa's health and the poor quality of the heroin previously purchased on February 19 by Petrossi, (R. 37-38), and also Petrossi's continued interest in purchasing heroin and cocaine. (R. 37-39) Petrossi again told Figueroa that he only wanted to pay ...