The opinion of the court was delivered by: CURTIN
The defendant in this case was charged with unlawfully distributing heroin in violation of 21 U.S.C. § 841(a)(1). By consent of the parties and the court, trial was held without a jury. Transcript was prepared and the parties submitted briefs on the facts and the law. The defendant testified in his own behalf and admitted selling the heroin, but claimed that he was entrapped by a Government informant who was working directly under the direction of a federal narcotics agent.
Testimony at the trial showed the following. In May of 1974, the defendant Gilmore was the manager of the Down and Under Barber Shop on East Utica Street in Buffalo, New York. Near the end of April 1974, the defendant, in a chance street meeting, was introduced to a Robert King by a man named Finess, whom Gilmore had known for about six months. Unbeknownst to Gilmore, Robert King, also known as Bobby King and Chico, was an informant for the Federal Drug Enforcement Administration [D.E.A.]. During their conversation, King made an appointment for a haircut at Gilmore's shop. He came there later that day and had his hair styled, but nothing of importance occurred. About a week later, on April 30, 1974, King made another appointment with Gilmore. When he arrived, it was late in the afternoon and the other customers had left the shop. After some general conversation, King asked Gilmore if he was interested in making some money. When Gilmore asked King what he had in mind, King said that he had a friend in Toronto who owed him some money and he wanted Gilmore's assistance in carrying out a scheme to get the money back. King proposed that Gilmore sell a quantity of heroin, which King would provide, to his friend for an amount in excess of the usual price, and for more money than King could get if King sold drugs directly to his friend. He said that this man was desperately in need of drugs for his wife or girlfriend and promised to pay Gilmore $300 if the sale was successful.
Gilmore testified that he told King that he did not participate in this type of activity and that he did not want to have anything to do with the proposed scheme. Nevertheless, Gilmore explained, King persisted and stressed the ease with which the transaction could be carried out. After between one and two hours of conversation, Gilmore testified, he reluctantly agreed to the venture. Gilmore admitted he was not threatened and was not afraid of King at any time. He further admitted that he thought about the proposal overnight. According to Gilmore, King came the next morning to the Down and Under Barber Shop at about 11:00 a.m. and met Gilmore alone, giving him a tinfoil packet which Gilmore hid on top of a ceiling panel in the bathroom of the barber shop. King instructed Gilmore that when he returned later in the day with his friend Gilmore should charge $900 for the heroin.
About 11:30 a.m. on May 1, 1974, King met at the D.E.A. office in downtown Buffalo with Agents John Brown and Joseph Falsetti. Falsetti had never met King before, and in fact did not learn his full name until some days later. Brown had met King in 1972 and was aware that King had been a confidential informant for the Government in Columbus and Cleveland, Ohio in the intervening time period. Brown was also aware that King had an extensive criminal record, including charges placed against him in 1972, 1973 and 1974. Brown testified that King's criminal record did not cause him to question King's reliability.
At that May 1, 1974 meeting, which Brown recalled lasting about one hour, but at which Agent Falsetti was present for only three to five minutes, King advised the agents that he had made an arrangement with Gilmore to bring a friend to the Down and Under Barber Shop at about two o'clock that day for the purchase of an ounce of cocaine for $1,000. Falsetti was to pose as an out-of-town buyer of cocaine for his girlfriend. Although King said that Gilmore might have heroin, it was understood that the purpose of the meeting was to purchase cocaine.
Before going to meet Gilmore, King was searched by the agents and no contraband was found on his person. However, the agents were unaware of King's activities either on the previous day or earlier that morning.
At noon, King called Gilmore saying that they had been delayed at the Peace Bridge but would arrive at the shop shortly. About 2:00 or 2:15, King arrived at the barber shop with Agent Falsetti, whom he introduced to Gilmore as his friend "Rob" from Toronto. When Gilmore learned that Rob was white, he was surprised because he expected that King's friend would be black as he and King were. After Gilmore led them into the bathroom, Rob asked if Gilmore had any cocaine. Again Gilmore was surprised since only heroin had been mentioned and supplied by King. Not knowing what to say and believing that King would give him instructions later, Gilmore told them to return, saying that he would try to get some cocaine.
When King and the agent returned about 6:00 p.m. that afternoon, Gilmore again ushered them into the bathroom and advised Rob that he had no cocaine. In response, Rob asked for heroin. Gilmore then removed the packet from the ceiling hiding place, opened it at Rob's direction, and King examined it. Gilmore represented that the heroin was of sufficient strength to support a "three-cut." There was some haggling about the price to be paid, Gilmore at first demanding $1,000 and Falsetti, in his role as Rob, offering $800. Finally, Falsetti paid $900 to Gilmore and took the packet. Before leaving he asked: "Well, could you get the cocaine for me?" Gilmore said: "Okay, well I try to get it for you." At trial Gilmore insisted that he said this merely to string Rob along and never intended to obtain any cocaine for him. He said that he thought that King would straighten Rob out and that the problem would be resolved.
At about eight o'clock that evening, according to Gilmore, King returned to the barber shop and, without further conversation, Gilmore gave him $600. King said he would return in a few days for a haircut and left. Gilmore did not ask King why Rob was white or why Rob continued to demand cocaine when the only prior conversation between Gilmore and King was about heroin. Gilmore never saw King again.
On May 2, 1974, the day following the above transaction, Falsetti called Gilmore on the telephone asking about cocaine and Gilmore again told him that he would attempt to get some for him. Falsetti also complained about the quality of the heroin which Gilmore had delivered to him. Gilmore told him the quality was good but did not place any blame on King for any defect in the material. For a period of a week, Falsetti continued to call Gilmore on the telephone and Gilmore continued to represent to Falsetti that he could get cocaine. However, no further transaction occurred. These conversations were recorded and admitted into evidence at trial.
Gilmore explained that he continued to make these representations because he was afraid for his own safety and did not know what to do since he was not able to get in touch with King. He did not want to reveal to "Rob" that King had hoodwinked him. He attempted to telephone King at the Fairfax Hotel, where King had been staying, but was informed that King had checked out. At the same time, the agents were also attempting to contact King without success. They later learned that he had checked out and left Buffalo.
Shortly after the indictment was returned, defense counsel demanded the production of Robert King at trial so that his involvement could be documented. The Government was unable to locate King and finally learned that he had been killed. As a result, he was not available to defense counsel or the Government at trial.
The Government admits that it is unable to prove the source of the heroin. It argues that Gilmore's story that he obtained it from King should not be accepted, but is unable to offer any ...