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October 25, 1978


The opinion of the court was delivered by: ELFVIN


The abovenamed defendants were indicted March 4, 1976 in a five-count indictment charging both with having conspired earlier in 1976 to distribute heroin and charging defendant Forbes in four counts of having distributed heroin or possessed heroin. As to one of said distribution counts, defendant Broward is charged with having aided and abetted defendant Forbes.

 The case had its genesis in Detroit where one Margaret Carriger had been and was acting as an informant for the Federal Bureau of Investigation ("FBI") and particularly for Special Agent Randolph G. Prillman. She had been acquainted with Broward who had convinced her to assist him in a narcotics deal. In that connection she was to and did meet Broward in Toronto February 13, 1976 at a specified hotel. Prillman alerted the Ontario (Canada) Provincial Police ("OPP") and, prior to leaving Detroit, she met and talked with an officer of the OPP. Prillman made no contact with the United States Drug Enforcement Administration ("DEA") because the transaction was supposed to take place in Canada. Carriger was most desirous of having her role and status with the FBI kept confidential because, among other things, she was afraid of Broward. The OPP had relayed the information to the Royal Canadian Mounted Police ("RCMP") which had the prime responsibility for drug investigations in Canada. It was decided to seek authorization for surveillance of the telephone conversations to and from Broward's room in the Toronto hotel and an emergency authorization good for 36 hours was obtained. Later a regular authorization was received. The Canadian police secured an "observation room" at the hotel. The OPP, by way of "courtesy", advised Prillman that Carriger had met with Broward and others in Toronto and that there had been some talk about a narcotics transaction. Broward wanted Carriger to act as a courier for the distribution of heroin but Prillman and the Canadian police decided that the enterprise occasioned too much risk for the informant and it was agreed that she should be extricated. While the transaction had at the outset been evaluated as a wholly Canadian operation, the DEA's resident agent (Gill) in Toronto was apprised of the investigation when information concerning Broward was needed and Gill was thereafter at a time or times physically present in the observation room. The DEA cooperated with the RCMP by supplying photographs of Broward. DEA Special Agent "AAA" *fn1" , stationed in Buffalo, was telephoned by Gill and it was AAA who physically carried Broward's photographs and record to St. Catherines which Canadian city is roughly halfway between Toronto and Buffalo and handed them over to Gill. Gill also had asked AAA to inquire concerning any airplane reservations to Toronto in Broward's name and AAA gave information concerning the same to Gill. As a result of the travel data and photographs, the Canadian law enforcement officers were able to recognize Broward at the Toronto airport and to initiate their surveillance of him.

 Broward wanted Carriger's help in carrying heroin from Buffalo to Detroit and Los Angeles and threatened that he would find her wherever she went if anything went wrong. Carriger feared for her life and tried to beg off by telling Broward that her contacts were interested only in cocaine and not in heroin; however, Broward insisted that anyone who bought or used cocaine would buy or use heroin. The Canadian police, from time to time and surreptitiously, were able to confer with Carriger. It developed that a heroin deal was to "go down" in the United States, that there was a cache of heroin in Buffalo and that she was to have a transaction in heroin with Forbes in Buffalo. Consequently, the Canadian police obtained permission from Prillman for Carriger to work with the DEA on the matter and deferred to the DEA; no criminal charges were laid in Canada. Broward had telephoned Forbes's home in Buffalo from Toronto and a meeting of Broward and Forbes and Carriger was arranged for Buffalo. The DEA had joined in persuading Prillman to release Carriger for work with it and promised to assure her safety. Arrangements were made to institute and maintain a surveillance of Broward and Carriger when they reached Buffalo. Only Carriger came to Buffalo, she was met by Forbes and taken to a Buffalo hotel where her room was kept under surveillance from the time she checked in. An attempt was made to tail Forbes as he left but he employed evasive tactics and the surveillance could not be maintained. Special Agent Peterson of the DEA had registered into the room next to Carriger's and he had had voice contact with Carriger who had reported that Forbes was to return soon. Forbes did return and remained for some 45 minutes in Carriger's hotel room and, as soon as he was reported to have left the area of the hotel, Peterson went to Carriger's room; Carriger had told Peterson by telephone that she had received $ 5,000 worth of heroin from Forbes and that it was strapped to her body in plastic bags. Carriger was relieved of the heroin and travelled at once to Detroit and Prillman.

 AAA had been on leave and had been summoned back to Buffalo to assist in the Buffalo events. He and his superior and an attorney from the office of the United States Attorney conferred and decided that Margaret Carriger should be charged as a defendant because her life or physical well-being had been threatened and such charges would tend to "cover up" her informant status. The attorney approved the affidavit and complaint and AAA took them to the home of the United States magistrate Edmund F. Maxwell, he being out of his office on the legal holiday. With Buffalo Police Department Detective BBB *fn2" present, AAA (according to his and BBB's later testimony) advised the magistrate of the threats to Carriger and told him that she was a government informant, that she was identified in the documents as "Margaret Carcer" in order to aid in the coverup of her assistance to the governments of Canada and the United States and that a fictitious unnamed informant had been introduced to the narrative. The pertinent parts of AAA's supporting affidavit are as follows:

" * * * On February 12, 1976, your deponent received information from Special Agent Frank Gill, Toronto DO, that Odell BROWARD would be traveling to Toronto, Ontario, Canada to meet with Margaret CARCER, and other unknown individuals to negotiate for the sale of a large quantity of heroin. On that date your deponent did verify that BROWARD travelled to Toronto via Allegheny Airlines.
"On February 13, 1976, Margaret CARCER arrived in Toronto, Ontario, from Detroit, Michigan.
"On February 13, 14, and 15, 1976, CARCER, BROWARD, and two other unidentified individuals met in CARCER'S room in (a hotel) in downtown Toronto. The RCMP told your deponent that during the course of these meetings, BROWARD told CARCER that she was to travel to Buffalo, New York and pick up a sample package. CARCER told BROWARD that she had customers in Detroit and California.
"The RCMP told your deponent that on February 14, 1976, BROWARD contacted Gary FORBES in Buffalo, New York, and directed him to prepare a special sample for one. BROWARD further told FORBES that CARCER was negotiating for at least a hundred thousand dollars worth, and a special package of "pure" and a five thousand dollar package was needed for the customers in Detroit. Broward told FORBES that CARCER would be arriving in Buffalo, New York, on February 15, 1976 via Allegheny Flight # 804, which would arrive in Buffalo at about 1:59 PM and that he (FORBES) should pick up CARCER at the airport. BROWARD directed FORBES to rent a room at (a certain hotel in) Buffalo, New York, and that the transaction would take place there.
"Special Agent Kenneth B. Peterson told your deponent that on February 15, 1976, at about 1:55 PM, CARCER arrived at the Buffalo International Airport and was met by FORBES. FORBES AND CARCER were followed by agents of the Buffalo District Office, DEA, to the (hotel).
"At about 2:35 PM, Agent Peterson observed FORBES exit the (hotel), enter his vehicle and drive in a circuitous manner to the vicinity of Tupper and Franklin Sts., Buffalo, where the surveillance was discontinued due to his extremely evasive driving techniques.
"Your deponent was advised by Special Agent Peterson that CARCER had registered in Room 414 in the (hotel).
"At about 4:15 PM, Forbes was observed arriving at the (hotel) carrying a dark colored briefcase, and enter CARCER'S room. At about 5:20 PM, FORBES left the (hotel) and drove in an evasive and circuitous manner to the parking lot of Audrey and Dell's Records, Walnut and Broadway, where he parked his vehicle and was observed entering 362 Broadway.
"On February 16, 1976, your deponent was advised by Special Agent Randy Pillman (sic), FBI, Detroit Office, that a reliable informant stated that he had seen Margaret CARCER on the evening of February 15, 1976, in Detroit, Michigan. This reliable informant told Agent Pillman that he had seen brown powder contained in two separate glassine envelopes and an additional two clear plastic bags containing brown powder, all taped to CARCER's body with brown tape. This informant told Agent Pillman that CARCER had stated that she had met and negotiated with Odell BROWARD in Toronto, Ontario, and had subsequently, on ...

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