Appendix — Hampton v. United States

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APPENDIX |

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SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-5822

CHARLES HAMPTON,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI FILED JANUARY 10, 1975

CERTIORARI! GRANTED MARCH 31, 1975

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-5822

CHARLES HAMPTON,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

APPENDIX

TABLE OF CONTENTS

List of relevant docket entries ................

Partial transcript of proceedings ... .

, .. aaaererrree

et ora ha 3 8-08

2 Sere errr re ere eee

James D. McDowell ............

EE ND io vcceccscccedicvctdussveknebien 58

CED CN ove es 0s 60 cnddeationndeedane? 58

PU GUE 6 vc bees bscdeces cds decease eese 89

Jule Hutton er ren ts rere

& «ss BAP EP PPEPELUEPUEEE TCT TC LE LT ee 93

Order denying defendant’s motion for special jury in-

struction on the defense of entrapment ........... 95

District Court's instructions to the jury ............ 96

Defendant's motion for special jury instruction on defense

OE GI | sc. d 60 0 owed Sea eé decd asscrieccens 104

Order correcting erroneous omission of defendant's motion

for special jury instruction on defense of entrapment

ey We ED bv cuba edhe Cees eCisetheqassees . 105

Mandate of United States Court of Appeals for the Eighth

Eh 6 ow ede onde bes peseesd ese sdeagwadeeeees 106

Opinion of United States Court of Appeals for the Eighth

- SP Pewrrrrrys rere ery sd Seer r rer errr eee 107

Date

1974

Mar.

LIST OF RELEVANT DOCKET ENTRIES

District Court

Proceedings

Deft appears with David A. Lang, his atty., waives

formal arraignment and enters plea of not guilty to

each of Counts | and 2 of indictment. Deft granted

15 days in which to file contemplated motions and

cause set for trial on Mar. 25, 1974. Deft. remanded

to custody of the U. S. Marshal. Ct. finds deft's age

is 27 yrs.

3 Memo of deft in support of his request for a special

instruction on the defense of entrapment and in sup-

port of any motions for a judg. of acquittal made

during course of his trial, fid.

6 Deft appears with David A. Lang, his atty., and

having heretofore entered plea of not guilty to ea.

of Cts. 1 and 2 of the Ind., and cause having been

set for trial this day, parties announce ready. Jury

empaneled and sworn and the introduction of evi-

dence on behalf of plff is commenced and concluded.

Oral motion of deft for judg. of acquittal made at

close of the Govt's case and overruled. Further pro-

ceedings on trial postponed until tomorrow at 9:45

a.m.

7 Again comes the deft., his atty, and the jury. The

introduction of evidence on behalf of deft is com-

menced and concluded. Rebuttal evidence on be-

half of plff commenced and concluded. Surrebuttal

=

evidence on behalf of deft commenced and con-

cluded. Oral motion of deft for judg. of acquittal

made at close of all the evidence and overruled.

After arguments of counsel and charge by the Ct.,

the jury retires to consider its verdict. Thereafter the

jury returns into Ct its verdict finding deft Hamp-

ton guilty as charged in ea. of Cts. 1 and 2 of the

Ind. On motion of deft, the jury is polled and the

Members thereof individually as called ack. said

verdict as their true verdict and finding herein.

Imposition of sentence deferred to May 24, 1974

at 9:30 a.m. and deft remanded to custody of the

U. S. Marshal.

Motion of deft for a new trial fld. Argument re-

quested.

Deft appears with David A. Lang, his atty., for im-

position of sentence under verdict returned by a jury

finding deft guilty as charged in ea. of Cts 1 and 2

of the Ind. Brief of deft in support of his motion

fora new trial, heretofore fid., fid., and sd. motion

is overruled. Under ea. of cts | and 2 of Ind., deft

sentenced to imprisonment for a period of 5 yrs.,

followed by special parole term of 3 yrs. on ea. of

sd. cts, such terms to begin and run concurrently

with each other, making an aggregate term of im-

prisonment of 5 yrs followed by special term of

parole of 3 yrs as provided by T. 21, U.S.C., Sec

841(b1)(A). Execution of sentence imposed herein

suspended and deft placed on probation for a pe-

riod of 5 yrs in accordance with conditions fld and

with the special condition deft remain in the cus-

tody of the North Carolina Prison System during

period of his probation. Judg & Commitment fid

and entered. CC to U. S. Atty., U S Marshal and

Prob. Office. (Nangle, J)

Foe

Notice of appeal of deft fr. final judg of conviction

of May 24, 1974 fid.

Copy of appeal sent to U. S. Atty. and deft. c/o

Corr. Inst. N.C. Certified copy of appeal and 2 cer-

tified copies of Clerk's docket entries delivered to

Clerk of U.S.C.A., 8th Circuit.

Marshal's return to J & C. fid. Deft. delivered to

State Authorities for North Carolina 5/28/74.

Original documents requested and certified copy of

Clerk’s docket entries delivered to Clerk of U.S.

C.A., 8th Circuit. Two additional sets delivered.

Opinion and Mandate of United States Court of Ap-

peals for the Eighth Circuit affirming judgment and

commitment of District Court.

United States District Court

Eastern District of Missouri

Eastern Division

United States of America, +

Plaintiff,

i

Charles Hampton, a/k/a Michael

Byers,

Defendant. |

PARTIAL TRANSCRIPT OF PROCEEDINGS

PLAINTIFF’S CASE

[*30} | JULE HUTTON,

being produced, sworn and examined in behalf of plaintiff,

testified as follows:

Direct Examination

By Mr. Dye

State your name, please. A. Jule Hutton.

What is your occupation? A. Pre-inspector.

Where do you work? A. I work at Safelite Glass.

eo 8 ©

What city is that? A. Wichita, Kansas.

Q. How long have you lived in Wichita?

* Numbers appearing in brackets in text indicate

of original stenographic transcript of testimony. act

Cause No. 74 96 CR(4).

=

Mr. Lang: I can't hear the witness.

The Court: You wanted to get Mr. Hutton’s occupation?

Mr. Lang: Yes, your Honor.

The Court: What is your occupation?

Is that the company you work for, S-a-l-e-l-i-t?

Mr. Dye: Safelite, your Honor.

The Witness: Yes, it is.

The Court: And your position is that of pre-inspector there.

The Witness: Pre-inspector.

Q. (By Mr. Dye) What do you do as a pre-inspector? [31]

A. We make windshields. I inspect all the glass.

Q. How long have you been in that capacity? A. Approx-

imately three weeks.

Q. Are you familiar with an individual by the name of

Michael Byers, also known as Charles Hampton? A. Yes,

I am.

Q. Do you see that individual in the courtroom today,

please? A. Yes, I do.

Q. Would you identify him, please? A. The gentleman

sitting right here with the shades on and red sweater.

Mr. Dye: May the record reflect identification, your Honor?

The Court: Yes, it so reflects.

Q. (By Mr. Dye) Directing your attention to February 25,

1974, did you have occasion to see this individual? A. Yes,

I did.

Q. Did you have occasion to see an individual by the name

of Terry Sawyer? A. Yes, I did.

Q. Who is Terry Sawyer? A. Special Agent for DEA,

Drug Abuse Law Enforcement.

odtion

Q. I think I should backtrack a little bit and ask you [32]

if you have ever been convicted of any felonies? A. Yes, I

have.

Q. What felonies are those? A. I was convicted of bur-

glary in 1966; I was convicted of forgery in 1973.

Q. Now, directing your attention to February 25th, you

had occasion to see Agent Sawyer at that time? A. Yes, I did.

Q. Did you have occasion to talk to him on the telephone

at any time? A. Yes, I did.

Q. Could you tell us about what time and what was the con-

versation? A. Approximately around 8:30, 8:45, late in the

afternoon, I called Agent Sawyer at his home and I stated that

I had met an individual by the name of Michael Byers and I

had set up a heroin deal. Agent Sawyer then asked me, said,

“Well, what did he have?” and I told him he had what they call

a “boil”, which is half a spoon, and he said, “Well, how much

money do I need?” I said, “Well, I have to ask him and see.”

So at this time I went over to the individual known as Michael

to me and asked him how much money he had to have, and he

told me $155.00. I then told Special Agent Terry that he had

to have $155.00.

Q. Where were you when you were making this telephone

[33] call? A. At a tavern called The Pud on Delmar and

Q. Is that P-u-b? A. P-u-d, d, P-u-d.

Q. P-u-d, Pud, okay. Did you have occasion to make a

second telephone call that night? A. Yes, I did.

Q. What was that telephone call? A. First Agent Terry called

me.

Q. I see. A. He called me back.

Q. Where did he call you? A. At the Pud Tavern.

en ee

=

Q. What if anything did he say? A. He told me that he had

got the money together and he would meet me approximately

10:00 o'clock.

QO. And then what did you do after this telephone call? A.

I then told Michael Byers that what the agent had said, that

he would be here approximately 10:00 o'clock.

Q. What if anything did Mr. Byers, also known as C harles

Hampton, say? A. He told me okay, and we started to playing

pool for a while, and I imagine around 9:00, ten after 9:00, he

left the tavern, said he would be back in a few minutes.

[34] Q. This was shortly after Agent Sawyer called you? A.

Yes, it were.

Q. Approximately how long was Mr. Hampton gone? A.

Approximately ten or fifteen minutes.

Q. What happened after he returned? A. After he returned

he said everything was all right, and then Agent Sawyer called

me again and he stated that he was down on Lindell and Kings-

highway.

Q. What if anything did he say? Let me ask you this: Did

you, in your previous conversation, did you determine where

you might meet on that date? A. Yes, we did. That was in

the first—second telephone call.

Q. Where did he say that you would meet? A. He said we

would meet on Lindell and Kingshighway.

Q. What happened after this Agent Sawyer called you?

What time did he call you? A. The third telephone call was

around 11:00 o'clock, or quarter after.

Q. Could it have been a little earlier than that? A. Possibility.

Q. And then as a result of that telephone conversation what

if anything did you do? A. I then, after I talked to him, I told

him we would [35] be right down, I then went over and told

—

Michael Byers that Special Agent Terry was there, which I called

him Terry.

The Court: You'll have to speak up, Mr. Hutton, so they can

hear you over there.

Mr. Lang: Would you read the last question and answer?

Whereupon, the reporter read the last question and

answer.)

Q. (By Mr. Dye) What happened after your conversation

with Mr. Hampton? When I say “Mr. Hampton” that also

means Michael Byers, is that not correct? A. Yes.

Q. What happened after that conversation? A. Well, we then

walked out of The Pud Tavern onto Delmar, where we walked

up to Kingshighway and we proceeded to go east, I think it

is, over to Lindell where we walked to—at first we stopped at

a motel which I thought that was the street, and we found out

it wasn't, then we proceeded and went on further on Kings

highway over to Lindell, where we stood on the corner for a

few minutes, and I think Michael stated that he had to go get

some cigarettes, and he walked into the hotel lobby. At this

time Special Agent Terry and the other agent pulled up in a

car. I walks over to the car and stated that he had just went

into the hotel, I would go and get him.

Q. And did you in fact go in after him? [36] A. Yes, I did.

Q. What happened after you met him in the hotel? A. Just

as I walked inside of the hotel he was going up some stairs, little

step up like, and I called him. He turned around. I told him

that he was here, and he in turn come on back out with me.

At this time Special Agent Terry had parked on the south side

of the street on the street on Kingshighway.

Q. When you say Special Agent Terry, who do you mean?

What is his full name? A. Terry Sawyer.

er ee

Pres ccceten ere seme ee ce Writ ws 8

= -

Q. What happened then after you noticed that the agents

were parking their vehicle? A. Myself and Michael walked

across the street where I got into the rear seat of the passenger

side and he got into the front seat on the passenger side.

QO. Was there any conversations after you got in? A. Yes,

{| think Michael was smoking what we call a joint, marijuana,

and he stated that it was awful good stuff. At this time Special

Agent Terry Sawyer asked him did he bring the package. He

said, yes, he did, and he took his cap off and took out a tinfoil

package.

©. What did he do with that package? A. Well, he passed

it to Special Agent Sawyer and Special Agent Sawyer attempted

to open it, and started to [37] waste, and he told him, he said,

“Wait a minute, let me do that,” and Special Agent give it back

to him where he opened it, and then give it back to him, Spe-

cial Agent.

OQ. Was there another agent in the car besides Sawyer? A.

Yes, there were.

©. Who was that, do you know? A. Special Agent Dowell, I

think it is.

Q. McDowell, is it? A. McDowell.

Q. I believe you stated that the package started to waste,

what do you mean by that? A. Well, the way it was wrapped,

and evidently he started to open it wrong, and it just started

to fall out of the package.

QO. And so then what happened after it started to fall? A.

Special Agent Sawyer give it back to Michael and he opened it

himself.

Q. And after Hampton opened it, what happened then? A.

It was passed back to Special Agent Sawyer.

— —_

Q. Was there any further conversation at that time? A. Yes,

there were. Special Agent Sawyer then passed it back to Special

Agent McDowell and told him to take some and test it.

Q. What kind of a test were they talking about, if you know?

[38] A. He was talking about a field test, marquis test.

Q. Marquis test? A. Yes.

Q. What if anything was the result of that marquis test, if

you know? A. Well, Special Agent McDowell———

Mr. Lang: Your Honor, I object to this testimony as hearsay.

The Court: T'll sustain it.

Go ahead.

Q. (By Mr. Dye) After examining the substance, did Agent

McDowell say anything? A. Yes, he did.

Q. What did he say? A. He said it was okay.

Q. What did he mean when he said it was okay?

Mr. Lang: Your Honor, I object to this as calling for a con-

clusion.

The Court: Sustained. The answer of the witness will be

stricken. Go ahead.

Q. (By Mr. Dye) During the course of the conversation in

the vehicle did Mr. Hampton make any reference to what the

substance was that had been examined by Mr. McDowell? A.

Yes, he did.

139] QO. What did he call that, or what did he say about it? A.

First he asked him how did he like that other stuff that he got,

and which when you say “stuff” you mean heroin.

Q. What do you mean by “other stuff"? We've got two dif-

ferent dates. We're talking about February 25, 1974. After

Agent McDowell examined the substance what, if anything,

did he do with it? A. He passed it back to Special Agent

Sawyer.

i, ee

ee ee eS a ae

Q. Was there any discussion about the price to be paid for

this substance? A. Yes, there were.

QO. What was the conversation about that? A. Special Agent

Sawyer asked him could he get a better deal than the price

we had agreed on, and Mr. Byers stated that the best deal he

could give him was for a hundred and forty-five dollars.

Q. For a hundred and forty-five dollars? A. Yes.

Q. At that time did Agent Sawyer have any discussions with

Mr. Hampton about future purchases of narcotics? A. Yes, he

did.

QO. What was that conversation? A. He stated that he would

like to get a larger quantity and Mr. Byers stated that he could

get him some nine, I think [40] it were.

Q. And, if you know, what does “nine” mean? A. “Nine”

means it’s heroin that can be cut nine times. You can take one

ounce and make nine ounces.

Q. Did Mr. Byers make any reference to how quickly he

could make this transaction in the future? A. I think he stated

that he had to leave town and he would be back in a couple

days.

Q. Why did he have to leave town, if he said?

Mr. Lang: Your Honor, I object.

Q. (By Mr. Dye) If he said.

The Court: I'll permit it to stand. Overruled.

Q. (By Mr. Dye) Did he have an explanation as to why he

had to leave town? A. I don’t think he did.

Q. Was any money given to Mr. Hampton at that time? A.

Yes, there were.

Q. How much was given? A. I observed special Agent Saw-

yer take some money out of his pocket and take off some money

~~

and pass it to Michael Byers. In return Michael Byers passed

him a bill. The denomination of the bill I can’t say.

Q. Then what happened after the exchange of the money

took place? [41] A. We then was driven back to the—Special

Agent Sawyer asked if we need a ride and I think I stated yes, it

was awful cold outside, and then he drove us back to Kings-

highway and Delmar where during the course of the ride Special

Agent asked Michael Byers was there anyway he could get

in touch with him, aad Michael told him, no, no way at first,

and then before we reached the destination, which was Kings-

highway and Delmar, he then gave him a number that he could

be reached at. He pulled up to the corner, myself and Michael

Byers got out of the Special Agent's car.

Q. After the money transaction was completed, was there

any other discussion about future narcotics sales? A. I don’t

understand the question.

Q. After the money changed hands, and after you were

getting ready to leave, after having been driven back up to

Delmar and Kingshighway, I believe you stated? <A. Yes.

Q. Was there any other discussion about any other future

narcotics purchases? A. I think Special Agent Terry stated

that he would get in touch with him later.

Q. Was there any reference made to the strength of any fu-

ture heroin that might be obtained? A. Not that I know of.

[42] QO. And directing your attention to the very next day,

which would be February the 26, 1974, did you have occasion

to see Mr. Hampton on that day? A. Yes, I did.

Q. Where did you see him on that day? A. It was late

afternoon, Mr. Hampton came by my room, which I was living

at 706 Kingshighway. He knocked on the door. | got up

and opened the door, and he told me that “those guys” had

called him. He didn’t state their same. He just said, “those

guys” had called him. I then—he then asked me, said, “Well,

|

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ete 49 ait

come on, go with me.” I said, “Man, I'm in bed.” He said,

“Well, come on, go with me to take care of this buy.” So, I

said, “Well, okay, wait till I get dressed.”

So, I then put on some clothes and washed my face and

brushed my teeth and we left together.

Q. About what time did you leave, if you know? A. I

don’t recall. I just know it was late in the afternoon.

Q. Could it have been early evening? A. Could have been.

Q. What happened after you left? A. We then walked down

Kingshighway to Maryland, I think it is, where we waited on

the corner for a few minutes, and I saw the agents’ car, and |

just waited to see if he was going [43] to see it, so he never

did, so I just pointed to the agent’s car and myself and him

walked over to the car and Special Agent McDowell got out of

the car, where I got into the rear seat—well, the Special Agent

got in first, and I got into the rear seat on the passenger side,

and Michael Byers got into the front seat.

Q. Who was in the front seat besides Mr. Byers? A. Spe-

cial Agent Sawyer.

Q. What happened after you all entered the vehicle? A.

After we got into the car Special Agent Sawyer asked him

did he bring the package, and Michael stated, “Yes,” and he

also asked him how did he like that other, and I think Spe-

cial Agent McDowell stated it was okay.

Q. Now, where did he obtain—did he give the agents any-

thing on that date? A. Yes, he did.

Q. What was it he gave them? A. Tinfoil package.

QO. Where did he get that tinfoil package from? A. Which

he took out of his cap.

Q. What kind of cap was it? A. It was a black cap.

Q. Can you describe it any more than that? A. Well, it was

just a regular cap with a bill on it, [44] black.

row 16 an

Q. And so what happened after he obtained the material out

of his cap? A. He passed it to Special Agent Sawyer and Spe-

cial Agent Sawyer in turn passed it to Special Agent McDowell

where I observed him take some out of the package on a paper

clip and put it into a little glass tube.

Q. Was this putting it into the glass tube, is that the same

procedure that had been gone through earlier? A. Yes, it

were.

Q. On the proceeding day? As a result of that test did Agent

McDowell make any comments? A. Sure. After about two or

three minutes he stated to Agent Sawyer it was okay, and Agent

Sawyer stated that had the money but it was in the trunk of

his car.

Q. And then what hapened after Agent Sawyer made that

Statement? A. Agent Sawyer then got out of the car and walked

to the rear of his car where he opened the trunk of the car,

and the next thing that I knew Special Agent McDowell told—

stated that he was Federal Narcotics Agents, to stay as you

were, that we were both under arrest.

Q. Now, Jule, have you ever been addicted to narcotics of

any kind? [45] A. Yes, I have.

Q. What was that? A. Heroin.

Q. Are you addicted at this present time? A. No, I’m not.

Mr. Dye: You may inquire.

Cross-Examination

By Mr. Lang

Q. Mr. Hutton? A. Yes.

Q. When did you first arrive in St. Louis? A. I can't give

you an exact date, but I can———

Q. Remember the month? A. Yes.

ide Ot ah

)

=—~ pe

O. What month was it? A. March.

QO. March of '73? A. ‘74.

QO. You didn’t arrive in St. Louis until March of °74? A.

Yes.

Q. This is March of ‘74, Mr. Hutton, and the transaction

was alleged took place with Chuck took place in February of

1974; how do you account for that? A. I could be mistaken.

I said I couldn't give you an [46] exact date.

Q. You don’t even recall the year, correct year that you

arrived in St. Louis? A. This is 74.

Q. That is correct and the transactions you just testified to

allegedly occurred February the 25th and 26th of 1974. So

how do you explain the fact you weren't present in St. Louis

at that time? A. I could be mistaken.

Q. You have no idea in fact when you arrived in St. Louis,

is that right? A. No, I don’t.

Q. Any reason why you don’t know when you arrived in

St. Louis? A. No, there isn’t

Q. Where did you stay when you first arrived in St. Louis,

whenever it was? A. At the Westgate Hotel.

Q. Were you living there alone or were you living there with

anyone else? A. I was living there with a lady.

Q. What was her name? A. Mary Weekly.

Q. Where did you meet Mary Weekly? [47] A. Kansas City,

Missouri.

Q. Did you live there with her until the time that you left

St. Louis? A. No, I didn’t.

Q. Who left first, you or she? A. She did.

Q. Do you know when it was that she left St. Louis? A. No,

I don't.

Q. You have no idea what month that would have been?

A. She was arrested while she was here, so I don’t know when

she left.

Q. Do you know when she was arrested? A. It was in the

month of March; the date I don’t know.

Q. Of 1974? A. 1974.

Q. When did you first meet Chuck Hampton, who was

known to you at that time as Michael Byers? A. I don’t re-

member the date but I know I had been in St. Louis approxi-

mately three or four days.

Q. Where did you meet him? A. At The Pud Tavern.

Q. Where is The Pud located again? A. On Delmar and

Kingshighway.

Q. Did you meet anyone else who was in the company of

[48] Chuck at that time? A. Yes, I did.

Q. Would you name those individuals, if you know? A.

I only know one.

Q. What was his name? A. First name Gus.

Q. Gus, you never knew what his last name was? A. No,

I don’t.

Q. What was the occasion that you all happened to be to-

gether in The Pud on this particular date when you first met?

A. It wasn’t a special occasion; it was just that I had—I had

been going to a bar around the corner there and that bar had

closed and I started going to the bar around there, and Gus

stated that Chuck was from Chicago, and I told him, I said,

well, I had lived there once myself, and I might know some

people that he knew, and we started talking.

Q. When did you first have a conversation with Chuck about

setting up a drug transaction? A. Chuck made the statement

that he had to have some money.

~~

Q. When did you first have the conversation, do you recall

the date? A. No, I don't.

QO. Where did it take place? [49] A. It took place in The

Pud Tavern.

QO. Who else was present at that time if anyone? A. During

the conversation there was no one present but just him and I.

QO. Was it on a weekday or weekend, do you recall that?

A. I think it was a weekday.

QO. Recall what time of the day it was? A. I can only

guess. It was in the afternoon.

QO. What was the subtance of that conversation? A. Chuck,

he stated he had to have some money, he had just got inte

town and he knew some people that he could get some heroin .

from.

Q. What did you say to that? A. I stated, well, I knew

some people that would be interested in buying some.

(.. How many people had you met in St. Louis before you

met Chuck would you say? A. Quite a few.

Q. Had you approached any of them about being involved

in drug transactions? A. Yes, I had.

Q. Did you approach an individual named Michael Carter?

A. I don’t know a Michael Carter.

Q. You don’t know anybody by the name of Michael Carter?

[50] A. No.

Q. Did you approach Gus Logwood?

The Court: Gus who?

Q. (By Mr. Lang) Did you approach an individual named

Gus, an individual referred to as Gus? A. About drugs?

Q. Right. A. No, I haven't.

—_—

Q. Did you approach an individual named Kenny? A. Yes,

I did.

Q. What did you say to Kenny about setting up a drug

transaction?

Mr. Dye: Your Honor, I will object. I don’t see how this

has any relevance to our case.

(Whereupon, discussion was had off the record at the bench,

in the presence but out of the hearing of the jury.)

Q. (By Mr. Lang) Incidentally, did you use any other name

or were you using any other name other than Jule Hutton at

the time you were in St. Louis? A. Yes, I were.

Q. What name were you using? A. James Gray.

Q. James Gray. That’s not your real name, is it? A. No,

it’s not.

[51] Q. Jule Hutton is your name? A. Yes, it is.

Q. You testified you had two prior convictions? A. That's

correct.

Q. One was in Illinois? A. Yes, sir.

Q. What was the crime you were convicted of? A. Buglary.

Q. That was in 1966? A. Yes, sir.

Q. You were also convicted of forgery in Colorado, is that

right? A. Yes, sir.

Q. That was in the Fall of '73? A. Yes, sir.

Q. Did you receive a sentence on that? A. I received a fine.

Q. A fine? A. A fine.

Q. A fine? A. Yes.

Q. You didn’t receive any jail time? A. No.

—

Q. You weren't placed on probation? A. I was placed on

supervision until the fine was paid. If I paid it all at one time,

then the supervision would be [52] discontinued.

Q. Did you receive a sentence on your conviction for bur-

glary in Illinois in 1967? A. Yes, I did.

©. What was that sentence? A. One to three in the Illinois

State Penitentiary.

QO. Did you serve the full time? A. No, I didn't.

Mr. Dye: Your Honor, I think we've been through all this.

The Court: I will sustain the objection.

Mr. Lang: I do have some more questions along this line.

The Court: Come up here.

(Whereupon, discussion was had off the record at the bench,

in the presence but out of the hearing of the jury.)

Q. (By Mr. Lang) Were you also convicted in Kansas City,

Missouri, in the Circuit Court of Jackson County, Mr. Hutton?

A. Yes, I were.

Mr. Dye: Your Honor, we have to determine whether it’s

a proper conviction.

The Court: Objection is overruled. Go ahead, Mr. Lang.

Q. (By Mr. Lang) You didn’t mention that when you were

{53} being .xamined by Mr. Dye on direct examination, is

that right? That is a coriviction that you forgot about? A. He

asked me when I was convicted, but it’s over with; I received

two-year probation.

Q. You do have a third conviction, is that right? A. Yes, sir.

Q. What was that for? A. Misconstruction of property—de-

struction of property.

The Court: Was it a misdemeanor?

= =

The Witness: It was a misdemeanor.

Mr. Dye: Your Honor, I will object and ask the court to

instruct the jury to disregard it.

The Court: I will instruct the jury to disregard it and that

portion will be stricken from the record and the jury thoroughly

instructed to disregard it, in regards to the witness at hand.

Q. (By Mr. Lang) Do you have any other felony convictions

that you recall? A. No, I don’t have any.

Q. When did you first become a special employee of the

United States Government? A. July 1971. I'm sorry, 1961.

Q. Where were you working or what area of the country were

you working in at that time? [54] A. I was working in Illinois.

Q. How long have you continued your employment as a

special employee of the United States Government? A. From

‘61 to '6S.

Q. And you terminated your employment at that time? A.

Yes, I did.

Q. When did you resume it again? A. June of °72.

Q. During the period that you have been a special employee

of the government, how many cases involving narcotics trans-

actions have you been involved in? A. I can’t give you an exact

number; I can only estimate.

Q. Could it be somewhere in the neighborhood of 80 or 90

cases? A. More.

Q. Didn't you also work as a special agent at Omaha, or

special employee for the government at Omaha? A. Yes, I did.

Q. And also Wichita, Kansas? A. Yes, I did.

Q. Didn't you testify in about 17 or 18 cases in Omaha,

Nebraska? A. Yes, I did.

ww ee eee ee eee Be -

. <Mies «

|

.

_—

Q. And you are receiving compensation for your services

[55] from the government? A. I'm paid at the rate of $25.00

per day, per diem.

QO. Doesn’t matter whether or not you participate in the con-

viction of an individual, you're just on a standard salary, 1s

that right? A. No, I'm not on a standard salary, I'm paid $25.00

per day, per diem.

Q. What do you mean by that? A. I mean if no cases are

made I still make the $25.00 per day, per diem.

Q. If a case is made do you get anything in addition? A. I

still makes the same thing.

Q. Now, during what period of time that you worked—let’s

take the first period of time, I think you said 1960 to ‘65?

A. Yes.

Q. You were working for the government, you were using

drugs, is that right? A. At the time.

QO. You were addicted to heroin? A. Yes, I were.

Q. What was the source of your supply of heroin at that

time?

Mr. Dye: Your Honor, I'll object to that.

The Court: I'll sustain the objection. I think [56] that’s far

beyond the scope of this trial.

Mr. Dye: Totally irrelevant.

Q. (By Mr. Lang) When did you last use drugs? A. "72.

Q. 1972; you have not used any heroin during the period

of time that you were in St. Louis, is that right? A. No, I have

not.

Q. On February the 26th, the date that you testified that

Chuck was involved in the second drug transaction with you,

did you receive any money from Chuck on that day? A. No, I

did not.

—

Q. Now, I think you testified that on February the 26th, the

date of the second drug transaction, that Chuck came by your

hotel room, is that right? A. Yes, he did.

Q. That was sometime cither in the late afternoon or evening?

A. Yes.

Q. And when did you leave your room? A. I can't give you

an exact time.

Q. About how long after his arrival did you leave? A. Ap-

proximately 10 or 15 minutes because he kept telling me he

was in a hurry

Q. Is that the first time you had seen Chuck on that day?

[57] A. Yes, it were.

Q. You had not seen him at all prior to the time he entered

your hotel room late that afternoon, is that right? A. Not that

I recall.

Q. When you left that room, you were going to make this

sale of heroin to Agent Sawyer, is that right? That was the pur-

pose of your leaving? A. The purpose of my leaving, I didn’t

want to go in the first place, he asked me, said, “Come on, go

with me to make this deal,” and I first stated, no, I didn’t want

to go, I was in bed. He told me, “I don’t think I could recog-

nize the people.”

Q. Had you been in bed all day on the 26th? A. I had just

went to bed. I had been up all night.

Q. Where had you been prior to going to bed? A. Gambling.

Q. Where were you gambling? A. On Washington and—oh,

it’s around 5700 block on Washington.

Q. Did you ever have a conversation at Chuck's apartment

where Chuck was staying in regard to setting up one of these

drug transactions? A. No.

Q. Had you ever been to Chuck's apartment? A. Yes, I had

=

[58] O. How many times had you been there? A. I don't know

how many, numbers of times. I went there several times. Him

and I smoked marijuana together.

QO. During the several visits that you had at his apartment,

you never discussed setting up any drug transactions? A. No.

Q. You don’t consider marijuana, I take it, a drug, is that

right?

Mr. Dye: Weil, your Honor, I object to this.

The Court: I will sustain the objection.

Q. (By Mr. Lang) But was it not your testimony that you

have not used any drugs during the period of time you have

been in St. Louis?

Mr. Dye: Well, your Honor, may we approach the bench,

please?

(Whereupon, discussion was had off the record at the bench,

in the presence but out of the hearing of the jury.)

Q. (By Mr. Lang) About how many times would you say

you had discussions with Chuck setting up either or both of

these drug transactions? A. Repeat the question.

Q. How many times would you say that you had conversa-

tions with Chuck setting up these drug transactions? A. Anyone

in specifics?

[59] OQ. Let’s start with the first transaction. How many con-

versations did you have with him with regard to that? A. I

think two.

Q. Where did the first concersation take place? A. Both of

them took place in The Pud Tavern.

Q. Was anyone else present at that time, at either of these

discussions? A. No, there was not.

Q. With respect to the second drug transaction, how many

conversations did you have? A. We didn’t have any.

it

QO. You didn’t have any conversations? A. No, not at the

second,

Q. Were you regularly making reports to Agent Sawyer or

Agent McDowell about the progress of your work and effort in

contacting suspects? Did you make any reports, written, oral

or otherwise? A. No.

©. You never told Agent Sawyer—is that your testimony,

that you never told Agent Sawyer at any time that Chuck was

interested in selling him heroin? A. I don’t understand the

question.

Q. Did you ever tell Agent Sawyer that Chuck was interested

in selling heroin to Agent Sawyer? [60] A. Did I ever tell

Q. Yes, did you ever tell that to Agent Sawyer? A. No more

than at the time that I set up the deal with him.

Q. Which time are you referring to? A. The first transaction,

Q. Let’s go back to the first drug transaction. How much

heroin did you tell Agent Sawyer that Chuck was going to sell?

A. I asked Chuck what did he have to sell.

Q. Oh, you asked Chuck how much he had. What did he

tell you? A. He said a half a spoon, which was a boil.

Q. Did Chuck tell you where he was obtaining this heroin

from that he was selling? A. No, he did not.

Q. Did you ever ask him where he was getting it from? A.

No, I didn't.

QO. You weren't interested in finding out? A. Well,

Mr. Dye: Your Honor, I can’t see what relevancy this has.

The Court: Well, it isn’t a very proper question, but I will

let him go—go ahead if you have an answer.

[61] A. Well, it’s normally not a procedure for a guy to ask

at that given time. You usually pick your time and places when

to ask for certain information, and you try and do it in a way

— 25

where you don’t arouse suspicion between yourself and that in-

dividual.

Q. So you were never with Chuck when he got any of the

heroin that he allegedly sold, is that right? A. No, I was not.

Q. What was the arrangement made with Chuck with respect

to your part in the transaction, that is to say, were you sup-

posed to be getting some type of pecuniary gain out of helping

Chuck find a buyer? Were you supposed to be getting some

money from Chuck for helping—to act as a broker more or

less in supplying him with Terry Sawyer as a buyer? A. No, it

was really strictly coincident that when we first met and he

asked me—was telling me about he needed some money, he

knew some places he could get some heroin that he could sell,

but he didn’t know a lot of people here, so I stated I know

somebody that would be interested in buying some.

Q. But you never had any part in attempting to get any

money; you were just doing it gratuitously as a favor? A. Yes,

it were.

Q. I take it then that you never gave Chuck any money at

all to help him get together with these funds in purchasing [62]

this heroin? A. No, I have not.

Q. You have not given Chuck any money for any purpose,

is that right? A. No.

Mr. Lang: I have no further questions.

The Court: Mr. Dye?

Mr. Dye: Just a few, your Honor.

Redirect Examination

By Mr. Dye

Q. Mr. Hutton, to the best of your knowledge do you know

the dates of the offenses that Mr. Hampton is charged with

today? A. Yes, I do.

.

QO. What are those dates? A. February 25th and 26th.

Q. When did you arrive in St. Louis? A. Well, I had been

in St. Louis approximately three or four days before the in-

cident, so———

Q. Where did you first meet the defendant? A. I met him

in The Pud Tavern on Delmar and Kingshighway.

Q. There was someone else at the tavern by the name of

Gus, I believe you said? A. Yes, there were.

[63] QO. How long have you been—I believe a special em-

ployee, the term has been used, but I think you actually are

called a confidential informant, is that correct? A. That's

correct.

Q. How long have you been in that capacity? A. Oh, ap-

proximately ten, cleven years.

Q. What agency are you working with at this time? A.

DEA.

Q. What is that? A. Drug Administration.

Q. Drug Enforcement Administration? A. Drug Enforce-

ment Acministration.

Q. I believe you stated you received compensation for your

services, is that correct? A. Yes, sir.

Q. I believe you also stated it is irrelevant whether you

make a purchase or do not make a purchase? A. That's cor-

rect.

Mr. Dye: No further questions, your Honor.

The Court: Mr. Lang?

Mr. Lang: I have one question.

=

Recross- Examination

By Mr. Lang

Q. But this is your job, is that right, to supply [64] infor-

mation as to suspected drug sellers? A. Repeat that.

Q. Your job is to supply information to the government

on suspected drug sellers, is that right? A. That's correct.

Q. And like anyone else, you're interested in seeing that

you do a good job? A. That is correct.

Mr. Lang: Right. Thank you.

Redirect Examination

By Mr. Dye

Q. Does your interest in doing a job, does that encompass

framing people? A. No, sir.

Mr. Dye: That's all.

The Court: You may step down.

(Witness excused.)

[65] TERRY C. SAWYER,

being produced, sworn and examined in behalf of plaintiff,

testified as follows:

Direct Examination

By Mr. Dye

Q. State your name, please. A. Terry C. Sawyer.

Q. What is your occupation, Mr. Sawyer? A. I'm a Spe-

cial Agent with Drug Enforcement Administration.

—)

Q. How long have you been so employed? A. Between

three and a half and four years.

Q. Are you familiar with an individual by the name of

Charles Hampton? [66] A. Yes, sir.

Q. Are you familiar with him under any other name? A.

Yes.

Q. What is that name? A. Michael Byers, Michael Cheno-

worth

Q. That's all we need.

Are you familiar with an individual by the name of Jule

Hutton? A. Yes.

Q. Are you familiar with an individual by the name of James

Gray? A. Yes.

Q. Is Jule Hutton and James Gray the same individual? A.

That’s correct.

Q. Were you so acquainted with these individuals on Feb-

ruary the 25th, 1974? A. Yes, sir.

Q. Did you happen to receive a telephone call from any

individuals on that day? A. Yes, sir, I did.

Q. Who was that individual? A. Jule Hutton.

Q. What was the substance of that conversation? A. He

advised me that he had arranged for me to purchase [67] a

quantity of heroin.

Q. Did he say who the individual was? A. Yes, he did.

Q. Who was that individual? A. Charles Hampton.

Q. What happened as a result of your telephone conversa-

tion?

Let me ask you, what did you tell him? A. At that time?

ee

=

Q. Yes, at that time. A. He gave me a phone number where

I could call him back, and I told him I would have to arrange to

get some money.

Q. What did you do after you talked to Mr. Hutton? A.

I talked with another agent about some money and got some

government money and called Jule Hutton back.

Q. Who was that other government agent? A. James Mc-

Dowell.

Q. Approximately what time did you call Mr. Hutton back?

A. Must have been around 9:30 that time. I told him I would

telephone him again when we got down in that area.

Q. What if anything did you do after making this telephone

call to Mr. Hutton? A. Myself and Agent McDowell proceeded

to the area of Lindell and Kingshighway, where I placed another

telephone call [68] to Jule Hutton.

Q. Where was he at this time, if you know? A. He was at

The Pud Tavern.

Q. What was the substance of your conversation? A. I told

him that we would—Agent McDowell and myself would wait

for him and the defendant at the corner of Kingshighway and

Lindell.

Q. Was anyone else near the telephone at the time of these

conversations? A. Oh, Agent McDowell may have been; I don't

recall. We made the call from a small cafe down there.

Q. On any one of these telephone conversations did Mr.

Hutton have occasion to talk to anyone while he was talking

to you? A. Yes.

Q. Who was that individual? A. Well, he told me it was

Defendant Hampton.

Q. What was the conversation that you had with him at that

time? A. I asked Jule Hutton how much the boil of heroin

was going to cost and he said, “Just a moment, the man’s right

=

here, I'll ask him,” and then he got back on the phone and told

me that it would be $155.00.

Q. And at that time you made arrangements to meet Mr.

[69] Hutton and the defendant? A. Well, that was the second

call, and later that night about 10:45, when we actually got

down into the area is when I made arrangements to meet with

them.

Q. So after your third telephone call that you were a party

to, what happened after that? A. Myself and Agent McDowell

waited in the area of Kingshighway and Lindell for quite some-

time. In fact, we drove up and down Kingshighway five times

to se¢ if we could see the people that we were supposed to meet,

but we didn’t, so we finally parked down there at Lindell and

Kingshighway, and at approximately 11:15 we observed Jule

Hutton and Charles Hampton arrive in that area.

Q. And what happened after they—did Mr. Hutton at any

time come to your vehicle and talk to you? A. Yes, he subse-

quently came to the vehicle and—along with Jule Hutton. They

both entered the government vehicle. Jule Hutton entered the

rear seat with Agent McDowell, and Mr. Hampton got in the

front seat with me.

Q. Before both the informant and the defendant arrived at

your vehicle, did you have occasion to see Mr. Hutton after you

yourself had arrived at that locale? A. Yes.

Q. What if anything was said at that time? [70] A. Well, we

saw both—I saw both Jule Hutton and the defendant, and the

defendant walked into the Chase Plaza Hotel, I believe.

Q. Chase-Park Plaza? A. Chase-Park Plaza, and I called

Jule over to the car and he said he just went in, he would go get

him; so he went into the hotel.

Q. So what happened after Mr. Hutton said the defendant

arrived at your vehicle? A. Mr. Hampton explained to me that

—<—

the heroin was seven cut and—or it was seven, I guess you would

say.

Q. What does he mean by “seven cut”? A. Well, I interpreted

it to mean that it had been cut seven times; it had been diluted

seven times. However, he may have meant that it was good

enough to be diluted seven times. I thought that he was saying

it’s already been diluted seven times.

Q. Then what happened after he said that? A. I asked him

for the heroin. He removed his hat and took it out of his hat

band and handed to me a tinfoil packet.

Q. Directing your attention to Government's Exhibit 1-C,

I would ask you to identify that, please? A. Yes, that is No. 1.

Q. Would you describe what that is, please? [71] A. This

is the tinfoil packet that the defendant handed me on the night

we are talking about.

Q. Now, there appear to be some sort of initials on that, is

that correct? A. Yes.

Q. What are those initials? A. Those are my initials and

Agent McDowell's initials. It’s dated February 25, 1974, Ex-

hibit 1, Case No. L-274X018.

Q. Is what is contained in Government's Exhibit 1-C the

same items you received from Hampton on that date? A. Yes.

Q. And what happened then after Mr. Hampton obtained

the Government's Exhibit 1-C from his hat? A. He handed it

to me.

Q. What did you do with it after he gave it to you? A. I

opened the package and examined the contents and held it

up so that Agent McDowell, who was in the back seat, could

remove a small quantity of substance and field tested it with

positive results for heroin.

Mr. Lang: Your Honor, may I approach the bench? I object

to the last testimony of the witness.

=

(Whereupon, the following proceedings were had at the bench,

in the presence but out of the hearing of the jury:)

Mr. Lang: I’m asking that the portion of the witness’ [72]

testimony that the substance tested for heroin be stricken from

the record and the jury be instructed to disregard it as hearsay

testimony. This witness has not established his qualifications as

an expert on the testing of heroin.

Mr. Dye: I'll join in that.

The Court: All right, do you want to start over again?

Mr. Dye: We can establish it with Agent McDowell; makes

no difference.

The Court: Miss Poole, would you read me that question and

answer.

(Whereupon, the reporter read the last question and answer.)

The Court: I'll sustain the objection and order the portion

stricken, and I'll do this in front of the jury, following what

Agent McDowell did with it, because I don’t think it’s respon-

sive.

(Whereupon, the following proceedings were had in the pres-

ence and hearing of the jury:)

The Court: I will sustain the objection, so the jury under-

stands, and ask that the portion of the answer explaining what

Agent McDowell did after Agent Sawyer handed the packet to

him, that that portion will be stricken and you are instructed to

disregard it.

Now, proceed.

[73] Q. Did Agent McDowell make any comment after ex-

amining the substence? Just yes or no. Was there a comment

or was there not? A. Yes, there was.

Q. As a result of that conversation what, if anything, did

you do? A. I then talked with the defendant relative to the

—_— =

price. I asked him if I could get a break on the price, and we

negotiated and arrived at $145.00.

Q. What happened after you agreed to that price? A. I

counted out $150.00 in official government funds and handed

it to the defendant. He gave me $5.00 change.

Q. And what, if anything, else was said during your mecting

with Mr. Hampton at that time? A. He advised me that he

could obtain spoon quantities of heroin which would be better

quality than that that I had just purchased. I asked him where

I could reach him, you know, if he had a phone number I

could reach him at, and he gave me a phone number. We then

drove the defendant and the informant back to the corner of

Kingshighway and— it’s not Lindell

Q. I believe—is it Delmar? A. Delmar.

Q. What happened after you arrived at that location? A.

The defendant and Jule Hutton exited the government [74]

vehicle and Agent McDowell and myself left the area.

Q. Now, after you left the area, where, if anywhere, did

you go? A. As I recall, we went home.

Q. Did you maintain what has been marked as Government's

Exhibit 1-C in your possession? A. Yes, sir, I identified it that

night as Exhibit | of that case, initialed it and put it under tem-

porary seal, kept it in my possession until the following day,

when I removed it from the lock. “al evidence envelope, weighed

it, resealed it and mailed it to the DEA chemist in Chicago

via registered mail.

Q. Showing you what has been marked as Government's

Exhibit No. 1-A, I would ask you to identify that, please. A.

This is the evidence envelope that I originally sent to the lab-

oratory, sent the evidence in to the laboratory.

Q. How was that mailed? A. Registered mail.

Q. Now, directing your attention to the next day, February

— 34 —

the 26th, did you have occasion to talk to the defendant? A.

Yes, I did.

Q. What, if anything, did you do as a result of that conver-

sation? A. I met with him on the corner of Maryland and Kings-

[75] highway that afternoon about 5:15, I believe.

Q. Was anyone with him when you met him? A. Yes, Jule

Hutton was with him.

Q. Who was with you at that time? A. Agent McDowell.

Q. What, if anything, did they—you were parked? A. Yes,

sir.

Q. In the vicinity, is that correct? A. That’s correct.

Q. What, if anything, happened after they saw you? A. They

came over and got into the government vehicle the same way

they did the night before. Jule Hutton got in the rear seat with

Agent McDowell and the defendant got into the front seat with

me.

Q. What, if anything, transpired while you were in the ve-

hicle? A. I asked the defendant if he had the heroin and he

said he did, and removed his hat, took out a package of —tin-

foil package again, handed it to me. I opened it and held it

over the seat for Agent McDowell to withdraw a small quan-

tity of substance.

Q. I show you what has been marked as Government's Ex-

hibit No. 2-C and ask you to identify that, please. A. That is

the heroin that I purchased from the defend- [76] ant on the

26th of February.

Q. What happened? What else happened after he had given

you the heroin in the vehicle? A. I told him that I thought it

was light weight, that it didn’t weigh enough, and he explained

that it was a full spoon. At that time I asked him how much

it would cost. He said, $500. I told him that the money was

in the trunk, which I got out of the government vehicle, walked

around to the trunk and opened it.

Q. Now, directing your attention to the inside of the auto-

mobile, did Mr. Hampton have any explanation as to your

criticism of the weight? A. As I recall, he stated that it was

a full spoon and was of high quality.

Q. So then what happened after you got out of the vehicle?

A. I opened the trunk of the vehicle, whch was a pre-arranged

signal to surveillance officers in the area that the arrest would

occur, at which time I walked up to the passenger side of the

vehicle where Mr. Hampton was seated and knocked on the

window; he opened the door and I placed him under arrest.

Q. And what if anything did you do after you effected the

arrest? A. We searched him for drugs and———

Q. We won't go into that. [77] A. —-—weapons.

Q. After you arrested him did you have occasion to do any-

thing with what has been marked Government's Exhibit 2-C?

A. Yes, I placed that under temporary seal and placed it in the

office vault overnight until the following day when I removed

it, weighed it, resealed it and mailed it to the DEA chemist in

Chicago via registered mail, return receipt requested.

Q. Directing your attention to Government’s Exhibit 2-A,

I would ask you to identify that, please. A. That is the envelope

that I sealed it in originally and sent it to the lab.

Q. And I believe you stated that Governinent’s Exhibit 1-C

had some initials on it, is that correct? A. Yes.

Q. All right, now, I show you what has been marked Gov-

ernment’s Exhibit 2-C and ask you if any such initials appear

on that also? A. They are the same.

Q. Now, directing your attention to the 25th of February,

did Mr. Hampton make any references to any future purchases

of narcotics which he might be able to arrange? A. Well, I

—_—

believe I have already testified that he told me he would be able

to obtain spoon quantities of heroin which would be of higher

quality than the heroin I had just [78] purchased.

Q. What arrangements did you make to get in touch with

him? A. I asked him for a telephone number.

Q. Did he in fact give you a telephone number? A. Yes,

he did.

Q. Did you ask him who you should try to get in contact

with? A. He said to ask for Chuck.

Q. And did he make any references to how quickly he could

secure another amount of heroin? A. He told me it would be

the following day.

Q. Did he say that he would have to check on it or any-

thing to that effect? A. Said he would have to see—talk to his

man about

Mr. Dye: Okay.

Your Honor, at this time the Government moves to intro-

duce Exhibits *-A, 1-B, 1-C and 2-A, 2-B and 2-C into evi-

dence.

The Court: Have you had a chance, first, to look over these?

Mr. Lang: I haven't as yet.

The Court: Would you.

Mr. Lang: No objections, your Honor.

[79] The Court: Exhibits 1-A, 1-B, 1-C, 2-A, 2-B and 2-C

will be admitted into evidence.

(Plaintiff's Exhibits 1-A, 1-B, 1-C, 2-A, 2-B and 2-C were

received in evidence.)

Mr. Dye: Your questions.

—_ wo

Cross-Examination

By Mr. Lang

Q. Officer Sawyer, when did you first meet the individual

known as James Gray? A. Well, I probably met him in Kansas

City a long time ago but I do not recall that. The first time

I recall meeting him was approximately three weeks before the

incident that we are discussing.

Q. What were the circumstances of that meeting? A. I

picked him up at the bus station here in St. Louis.

Q. And at that time he was coming to work here as a con-

fidential informant? A. That is correct.

Q. Now, you have been with the Drug Enforcement Ad-

ministration for approximately three and a half to four years,

is that right? A. That's correct.

Q. Often the Drug Enforcement Administration has to em-

ploy informers who are drug addicts to assist in apprehending

[80] suspected sellers, isn’t that right?

Mr. Dye: Your Honor, I think we have established that Mr.

Hutton is no longer an addict, and I think that is———

The Court: I'll let him answer if it’s the general policy, if

he’s familiar with it.

Do you understand the question?

Q. (By Mr. Lang) The question is often the DEA employs

drug addicts to act as informant or on occasions, at least? A.

Well, we try not to but it has been done.

Q. This may be done, these persons may be employed to

apprehend sellers of heroin, is that right? A. They don’t ap-

prehend them.

Q. Well, to assist in apprehending them? A. That's cor-

rect.

= =

Q. And sometimes is it necessary that the informant him-

self may make a purchase of drugs as opposed to an agent?

A. It has been done.

Q. And, as a matter of policy of the DEA are there any spe-

cial precautions taken in circumstances where the informer

is going to make a purchase of drugs as opposed to——

Mr. Dye: Your Honor, I'll object to that.

The Court: T'll sustain that objection, unless you have evi-

dence in this case that that was done.

Mr. Lang: Well, Your Honor, I will———

[81] (Whereupon, discussion was had off the record, at the

bench, in the presence but out of the hearing of the jury.)

Q. (By Mr. Lang) Do you have any knowledge one way or

the other as to whether or not James Gray was using drugs

while he was here in St. Louis? A. No, sir, I do not.

Q. How many conversations, if any, did you have with James

Gray regarding the first transaction that he was setting up

with Chuck? A. I had three.

Q. When was the first one? A. It was about 8:30 at night

on the 2Sth.

Q. What about the transaction that took place on the 26th,

how many discussions did you have with James Gray regard-

ing that, prior to the time? A. None.

Q. Was there an earlier sale of drugs that you are aware

of by Chuck, or a substance by Chuck to another undercover

agent named Frankie, who was going by the name of Frankie?

A. Yes.

Q. When did that sale take place? <A. I believe it was a

week or so prior to this.

=

Q. Where did the sale take place? A. I don't recall the

name of the place. I'm relatively [82] new in St. Louis——

Mr. Dye: May we approach the bench, your Honor.

The Court: Yes, | think you should. Miss Poole, would you

come up?

(Whereupon, the following proceedings were had in the

presence but out of the hearing of the jury:)

Mr. Dye: Your Honor, I object to this because it is beyond

the scope of the examination and it is irrelevant.

The Court: This may be prejudicial to the defendant.

Mr. Lang: I understand. Our defense all along in this case

has been the misrepresentations made by the informant to the

defendant as to the nature of the substance he was selling,

and I believe-——as to the nature of the substances he was sell-

ing, this was an earlier sale which had been induced by the

informant in this case, and there's evidence, I believe, to show

that that substance did not test positively for heroin and so this

later induced the defendant to believe that the other substances

which were sold by him on these prior occasions were not

heroin as well.

The Court: This involved this same Mr. Hutton?

Mr. Lang: Yes, it did.

The Court: With this defendant?

Mr. Lang: That's correct.

Mr. Dye: Your Honor, I will object. I think we [83] haven't

laid a sufficient foundation in the first place for Mr. Sawyer’s

personal knowledge of this. He's not qualified to testify as to

any chemical test. It’s clearly beyond the scope of the direct

examination and I think it’s irrelevant.

The Court: Well, Sawyer said he was familiar with it. Now

if he has no personal—Mr. Sawyer has indicated that he knew

—_—

of this thing, Mr. Long has not established that he had personal

knowledge, and Mr. Lang had better follow through in that

regard, but I will permit you, Mr. Lang, to go into this inquiry.

| admonish you to be careful so nothing prejudicial to the de-

fendant arises, and, secondly, to go slowly so that if there's

anything that looks like you're getting into a dangerous area

Mr. Dye can object and I can rule accordingly.

(Whereupon, the following proceedings were had in the pres-

ence and hearing of the jury:)

QO. (By Mr. Lang) Do you have any personal knowledge of

an alleged sale made by the defendant to an officer, undercover

agent named Frankie, or going by the name of Frankie, a sale

of a controlled substance? A. No, sir.

Q. Do you have knowledge, direct knowledge, personal

knowledge, of any sale of any substance by the defendant to

an undercover agent going by the name of Frankie?

Mr. Dye: Your Honor, he just asked the question.

[84] The Court: He changed it.

Is Frankie the person that you want this officer to identify

as the purported undercover agent?

Mr. Lang: Yes.

The Court: Did you understand that, Officer Sawyer? He

didn’t say narcotic, he said of any substance. Do you have

personal knowledge?

The Witness: I don't have personal knowledge.

Q. (By Mr. Lang) You do know an undercover agent who

goes by the name of Frankie? A. I know an undercover agent

who has used the name Frankie in an undercover situation.

Q. Is this individual black or white? A. Black.

Q. Was this individual present in the police station or where-

ever the defendant was taken when he was arrested? A. Yes.

—_

The Court: That is the first day we are talking about?

Mr. Lang: He was arrested after the second transaction.

The Court: After the second, on February 26th.

Q. (By Mr. Lang) He was present in the police station? A.

It wasn't the police station; it was our office.

Q. What is this undercover—-can you reveal the name of this

undercover agent, real name?

[85] Mr. Dye: May we approach the bench, your Honor.

(Whereupon, discussion was had off the record at the bench,

in the presence but out of the hearing of the jury.)

Q. (By Mr. Lang) The officer going by the name of Frankie,

did you hear him make any statements in regard to the purchase

o! heroin at the police station that he had supposedly made

from the defendant?

Mr. Dye: Your Honor, I will object to that on the grounds

of hearsay.

The Court: I will sustain the objection.

Q. (By Mr. Lang) Did you hear the undercover agent who

was going by the name of Frankie make a statement to the

effect

Mr. Dye: Same objection, your Honor.

The Court: Sustained.

Mr. Lang: May I approach the bench?

(Whereupon, discussion was had off the record at the bench,

in the presence but out of the hearing of the jury.)

The Court: Go ahead. I'll let you answer, Officer, if you

heard a statement made, you know, yes or no. By Frankie?

Q. (By Mr. Lang) By Frankie. A. Yes.

Q. May I inquire as to what statement?

— =

Mr. Dye: Well, your Honor, that’s hearsay.

The Court: [ll sustain it.

[86] QO. (By Mr. Lang) Do you have personal knowledge of

where Chuck obtained the substances that he soid to you? A.

No, I don’t.

Q. Do you have personal knowledge that Chuck knew these

substances were heroin? A. He purported them to be heroin.

Q. But you don’t in fact know what was in his mind, is that

right’? A. No.

Mr. Lang: May I approach the bench, your Honor?

The Court: Yes.

(Whereupon, discussion was had off the record at the bench,

in the presence but out of the hearing of the jury, and there-

after the following proceedings were had at the bench, in the

presence but out of the hearing of the jury:)

The Court: We'll go on the record here. Mr. Lang, you have

moved for—go ahead.

Mr. Lang: I move for the production by the prosecution of

any written reports or written memorandum that were made by

Officer Sawyer’s investigation of this case or that he participated

jointly in making.

Mr. Dye: May the record reflect the government has sub-

mitted the BND Form 6 to the defendant, which encompasses

the agent’s testimony and all his written notes.

(87] Mr. Lang: I would like to have a short opportunity at

counsel table to review it.

(Whereupon, the following proceedings were had in the pres-

ence and hearing of the jury:)

Q. (By Mr. Lang) Your testimony is that you only had three

conversations with James Gray on the 25th of February? A.

That’s the way—all I recall.

— —

Q. And prior to that you had not at all discussed any drug

transactions involving Chuck Hampton with James Gray? A.

Not that I recall.

Mr. Lang: That's all I have, your Honor.

The Court: Thank you, Mr. Lang.

Mr. Dye?

Mr. Dye: May we approach the bench?

(Whereupon, the following proceedings were had at the bench,

in the presence but out of the hearing of the jury:)

Mr. Dye: Your Honor, I'm ready to let this witness be ex-

cused. As you know, this is the individual who prepared the

tape recordings, but I will be content to let the tapes go in on

rebuttal unless defense has an objection to that.

Mr. Lang: I don't have any objection at this point.

Mr. Dye: So we will go through qualification of the witness

as to the various elements of the admissibility of the tapes.

[88] Mr. Lang: We will stipulate to that.

The Court: He may be excused then?

Mr. Dye: That's correct, your Honor.

(Witness excused.)

The Court: Call your next witness.

Mr. Dye: James McDowell.

— 44 —

JAMES D. McDOWELL,

being produced, sworn and examined in behalf of plaintiff,

testified as follows:

Direct Examination

By Mr. Dye

Q. Could you state your name, please? A. James D. Mc-

Dowell.

Q. What is your occupation? A. I'm employed as a spe-

cial agent for the Drug Enforcement Administration.

Q. How long have you been so employed? A. Almost five

years.

Q. Have you had occasion to be involved in a case cap-

tioned United States versus Charles Hampton, also known as

Michael Byers? A. Yes, sir, I have.

Q. Were you involved in this case on the date of Feb- [89]

ruary 26, 1974? A. Yes, sir, I was.

Q. At approximately what time were you involved in this

case? A. Shortly after 10:00 p.m. on that date.

Q. How exactly did you become involved? Did someone

give you a phone call or what? A. Yes, sir, Special Agent

Sawyer telephoned me at my residence.

Q. What if anything did you do as a result of that con-

versation? A. I met with Special Agent Sawyer and we then

proceeded to the intersection of Lindell and Kingshighway

here in the City of St. Louis.

Q. Lindell? A. Yes, Lindell.

Q. What happened? Approximately when did you arrive

there? A. Oh, approximately 10:45 p.m.

—_

Q. What happened after you arrived there? A. After we

arrived, Special Agent Sawyer made telephone calls, as I re-

call, and later that same day we met with two other indi-

viduals.

QO. Was one of those individuals the defendant? [90] A.

Yes, sir, it was.

Q. Would you identify him, please? A. He’s the man

seated at the table behind you, in the red or purple shirt.

Mr. Dye: May the record reflect identification, your Honor?

The Court: Yes.

Q. (By Mr. Dye) Now, was anyone with him, anyone else

with him at that time? A. Yes, sir.

Q. Who was that? A. Special employee of the Drug En-

forcement Administration.

Q. Who was that individual? A. Jule Hutton.

Q. Does he have any other name? A. Yes, sir; that he’s

known by?

Q. Yes. A. Yes, sir.

Q. What is that name? A. I believe it’s James Gray.

Q. Approximately when did you meet Mr. Hutton on that

day? A. Shortly after we arrived, within 15 minutes or so.

Q. Where did you meet? [91] A. Met at the—across—di-

rectly across from the Chase-Park Plaza Hotel on Kingshighway.

Q. What, if anything, did you do after you met with these

individuals? A. Well, Mr. Hampton and Mr. Hutton entered

our vehicle, government vehicle, and I seated myself in the back

seat behind the driver. Mr. Hutton got in beside me in the

rear seat and Mr. Hampton was seated in the passenger side of

the front seat.

—

Q. Was there any conversation after entering the vehicle?

A. Yes, sir, there was.

Q. Who made the conversation? A. The conversation was

chiefly between Special Agent Sawyer and Mr. Hampton.

Q. What, if anything, was said at that time? A. Oh, Mr.

Sawyer asked Mr. Hampton did he have the stuff with him and

Mr. Hampton stated that he did.

Q. Then what happend after that conversation? A. Mr.

Hampton withdrew an aluminum foil packet from the hat that

he was wearing at the time and handed it to Special Agent Saw-

yer in the front seat.

Q. What happened after Agent Sawyer got hold of that

packet? A. Agent Sawyer examined the packet and I took a

sample of the packet and tested it, made a field test on it.

[92] Mr. Lang: May we approach the bench?

Mr. Dye: Well, you know, he can state what he did, your

Honor, if he performed a field test. He’s not making a con-

clusion.

Showing you what has been marked as Government's Ex-

hibit 1-C, I would ask you to identify that, please. A. This is

the packet which I made a field test on on the night of the

25th of February, °74.

Q. How do you know that is the same packet? A. My ini-

tials are on the label in closing the packet.

Q. As a result of your field test which you performed, what,

if anything, did you say? A. I indicated to Special Agent Saw-

yer that the substance appeared to be of satisfactory quality.

I might say that the field test was for heroin, and I indicated

to Special Agent

Mr. Lang: I didn’t hear the answer.

The Court: Let Miss Poole read it so we will have it.

—~—~ =

(Whereupon, the reporter read the answer.)

Mr. Lang: May I approach the bench?

(Whereupon, discussion off the record was had at the bench,

in the presence but out of the hearing of the jury.)

Q. (By Mr. Dye) I believe you made reference to a field [93]

test that you performed? A. Yes, sir.

The Court: Excuse me. I will sustain the objection of the

defendant to the last question and answer, and the portion giv-

ing any result of the field test will be stricken from the record

and the jury instructed to disregard it.

Q. (By Mr. Dye) Now, I believe you stated you performed

a field test, is that correct? A. Yes, sir, that is correct.

Q. Have you performed these field tests in the past? A. Yes,

sir.

Q. Approximately how many times did you perform them?

A. Just giving a rough estimate, I would say approximately 50

or 60.

Q. Fifty or 60. Have you had any special training in that

area in how to perform field tests? A. Yes, sir.

Q. Did you receive training from the Bureau of Narcotics

and Dangerous Drugs to that effect? A. Yes, sir, that’s correct.

Q. You did have occasion to examine this heroin or what

has been marked Government's Exhibit 1-C, is that correct?

A. Yes, sir.

Q. Could you briefly describe the test you performed on

[94] it? A. I took a portion of the substance which was con-

tained in the aluminum foil and immersed it in a glass vial con-

taining a chemical reagent.

Q. What, if anything, developed in the vial? A. The liquid

in the vial changed color.

—_—

Q. To what color did it change? A. To a reddish purple.

Q. Based upon your examination of that substance and also

your training as a special agent by the Drug Enforcement

Mr. Lang: I think the question is calling for hearsay.

The Court: Well, first, complete the question and let me see

if it’s going to call for hearsay.

Q. (By Mr. Dye) Based upon your examination of Govern-

ment’s Exhibit No. 1-C, and based upon your training as a nar-

cotics officer by the Drug Enforcement Administration, have

you arrived at a conclusion as to the substance which can be

found in Government's Exhibit 1-C?

The Court: Excuse me, don’t answer yet, Agent.

(Whereupon, discussion was had off the record, at the bench,

in the presence but out of the hearing of the jury.)

The Court: I will sustain the objection as to that question

until you have a more complete foundation.

[95] QO. (By Mr. Dye) Now, you completed the field test, is

that correct? A. That's correct.

Q. What was the color of the field test? A. Reddish purple.

Q. Based upon your experience and examination of the sub-

stance, what does a reddish purple color indicate?

The Court: Go ahead, make your objection.

Mr. Lang: I object to the form of the question as calling

for hearsay.

Mr. Dye: I can’t see how it’s hearsay.

Mr. Lang: Could we approach the bench?

(Whereupon, the following proceedings were had at the bench,

in the presence but out of the hearing of the jury:)

—_—

Mr. Lang: It’s hearsay, the question whether the substance

was in fact heroin. If he’s going to express an opinion about

it being heroin, he has to show qualifications as an expert. No

qualifications have been put into evidence about this witness’

knowledge of what—he’s not an expert on the question of what

these tests demonstrate. All he knows he gives a test and it

produces certain results. No proper foundation has been laid,

No. 1. No. 2, it would be hearsay; if he does give an opinion

as to what the substance is, it would be hearsay, if he says it is

heroin.

[96] The Court: He's already shown that he has experience in

using this machine, and in training of the use—I say machine,

of this particular test.

What do you assume or understand his answer will be, Mr.

Dye?

Mr. Dye: That it indicates it to be a derivative.

The Court: I'll overrule the objection at this time.

(Whereupon, the following proceedings were had in the pres-

ence and hearing of the jury:)

Q. (By Mr. Dye) Based upon your examination of 1-C and

your formal training, have you arrived at a conclusion as to

the substance in Government's Exhibit 1-C pursuant to the field

test? A. Well, generally the field test is used only as a pre-

liminary indicator. My definite conclusion is usually not drawn

from the field test, so I, at that point, I couldn't say that it was

definitely one thing or another, only giving the general indica-

tion as the field test is designed to do.

Q. What was that general indication? A. That the substance

contained heroin.

Q. What did you say after conducting this test? A. I told

Agent Sawyer that the substance appeared to be of satisfactory

quality.

on Than

Q. And what, if anything, did Agent Sawyer do after that?

[97] A. Agent Sawyer then discussed with Mr. Hampton any

further transactions, the price of the—-of any further trans-

actions. He also discussed the price of the current—that is,

this packet, the price of this packet, discussed the quality of

this packet with Mr. Hampton.

Q. Did Mr. Hampton make any representations as to the

quality of the heroin? A. Yes, sir, he did.

Q. What did he say? A. Stated that the heroin contained

in this packet was a seven, but that t would take a nine, which

indicates based on my experience that it was cut seven times

but would stand a cut to nine times.

Q. Did he make any representations—did you inquire as

to what if anything was the substance of the Government's Ex-

hibit No. 1-C at that time? A. I’m not sure I follow your

question, sir.

Q. Did you discuss with him the contents of Government's

Exhibit 1-C? A. As far as its quality or its actual

Q. As far as its quality, that’s correct. A. Yes, sir.

Q. What if anything did you say? A. Other than the fact

that it was cut seven times and [98] would stand a cut to nine

times, is that

Q. Well, was there any representations made as to what ele-

ments, what chemicals were in Government's Exhibit No. 1-C?

A. Specifically?

Q. Yes, specifically. A. Not that I recall.

Q. Now, as a result of your examination of Government's

Exhibit 1-C, what, if anything else happened at that time?

A. Special Agent Sawyer paid Mr. Hampton for the exhibit.

Q. What happened then? A. Special Agent Sawyer asked

Mr. Hampton if he could obtain additional quantities of it, spe-

cifically mentioning a spoon quantity of the substance. Mr.

—_— »

Hampton indicated to Special Agent Sawyer that he would

be able to obtain spoon quantities but was unable to discuss a

price for the spoon quantities at that time, stating that he would

have to contact his source to obtain a definite price for the

additional quantity.

Q. Then after the conversation in the vehicle terminated,

what if anything happened? A. Special Agent Sawyer was

to contact him. Special Agent Sawyer asked Mr. Hampton

who he should ask for when he called. Mr. Hampton stated

that he should ask for Chuck.

Q. Now, directing your attention to the next day, which

would be February the 26th, 1974, did you have occasion to

work [99] on this case? A. Yes, I did.

Q. When did you become involved in this case on that day?

A. About 4:00 p.m. Special Agent Sawyer informed me that

we would again be meeting with Mr. Hampton in approximately

an hour at the intersection of Kingshighway and Maryland Ave-

nue, I believe, in St. Louis.

Q. What did you do as a result of that conversation? A.

We went to that location, that is, Maryland Avenue and Kings-

highway, and met with Mr. Hampton and Mr. Hutton again.

Q. What happened after you met with them? A. Mr.—l

got out of the vehicle, got in the back seat, assuming the same

position in the vehicle that I had the previous night. Mr.

Hutton also got in the back seat with me. Mr. Hampton again

got in the front passenger side.

Q. After they entered the vehicle, did you have any discus-

sions? A. Yes, sir.

Q. What was the gist of the discussions in your best recol-

lection? A. Special Agent Sawyer again asked Mr. Hampton if

he had brought the substance with him. Mr. Hampton again

removed his hat, although it was a different hat than the day

—

before, and handed Special Agent Sawyer a similar package to

that which [100] he had received the previous night.

Tere was discussion as far as its quality, and the price in-

voly d.

Q. Did you have occasion to examine what has been marked

as Government's Exhibit 2-C at that time? A. Yes, sir.

Q. Did you conduct a test on that substance? A. Yes, sir, I

did.

QO. Was that the same test you discussed previously in your

testimony? A. That's correct.

Q. And based on the examwmation of the substance in your

experience as a Special Agent of the Drug Enforcement Ad-

ministration, did you arrive at a conclusion, a tentative con-

clusion as to the substance contained in Government's Exhibit

2-C? A. Yes, sir, I did.

Q. What was that conclusion? A. The tentative conclusion

which I reached was that the substance contained some quantity

of heroin.

Q. Did you make any inquiry of Mr. Hampton as to what

if any chemicals were in Government's Exhibit No. 2-C? A.

Yes, sir, I did.

Q. What did you ask? A. I asked Mr. Hampton what the

heroin had been cut with [101] and he stated that he had added

lactose and Dormin.

Q. Did he make any reference to any other chemical? A.

Not that I recall.

QO. Was there anything unusual about the heroin when you

opened the package? A. Not that I recall.

Q. Was there any reference made to quinine in the course

of your discussions? A. There may have been but I don’t recall

specifically at this time.

—

Q. After you conducted your test, what did you then do?

A. I indicated to Agent Sawyer that again the substance ap-

peared to be of satisfactory quality, meaning to him that the

field test had been positive.

Q. We have heard a lot of discussion about what “spoon

means, could you describe what the term “spoon” signifies? A.

Well, it can signify several things. It can either be a teaspoon

or tablespoon full of heroin, or any other substance for that

matter.

Q. Do you know what a “boil” is? A. That is a new term

to my street vocabulary. It indicates, as far as I can tell, a

quantity of substance somewhat less than a spoon.

Q. After you conducted your test and after you had given

[102] the substance back to—I believe you stated it was Agent

Sawyer, is that correct? A. That's correct, I never actually took

the substance from him. I only removed a portion of the sub-

stance from the package itself.

Q. And after you conducted your test what if anything hap-

pened after you conveyed the information result of the test,

what happened to Sawyer then? A. Special Agent Sawyer dis-

cussed price with Mr. Hampton and he indicated, as I re-

call, the purchase price was $500. Special Agent Sawyer then

stated, well, he would have to get the money, and it was in the

trunk, whereupon, he exited the vehicle and went to the trunk,

which he had opened from the inside as it had an inside hood

release—I mean, excuse me, trunk release, and the raising of

the trunk was an indication to the surveillance agents that the

heroin had been delivered and that Mr. Hampton was to be

arrested at that time; whereupon, he was.

Q. What if anything happened after his arrest? A. He was

transported to the St. Louis District Office where he was proc-

essed.

=

Q. Finally, directing your attention again to Government's

Exhibit 1-C and 2-C, would you identify those, please? A. 1-C

is the package which I tested on the 25th of Feb- [703] ruary

of °74.

2-C is the package which I tested the following day, the 26th

of February, 1974.

Mr. Dye: No further questions, your Honor.

The Court: Mr. Lang, you may inquire.

Cross-Examination

By Mr. Lang

Q. Officer McDowell, what was the name of the field test

that you gave on February 26th? A. I believe the name of it

is the marquis reagent test.

Q. Marquis reagent test? A. Yes, sir.

Q. Would you explain what happens when you give this

test? What takes place? A. Well, the liquid contained within the

—it’s a small glass vial

Q. What is this vial usually made out of? A. Glass.

Q. Any specific type of glass, like porcelain? A. Not that I

know of, sir.

Q. Go ahead. A. The substance to be tested is placed into

the vial and immersed in liquid, in the liquid which is contained

in the glass enclosure, and based upon any color changes which

the [104] liquid changes to, tentative results or tentative con-

clusions are sometimes made from the color change.

Q. So, when you dropped the substance in the glass vial you

observed the initial color form, is that correct? A. That's cor-

rect.

Q. And then you watched this color change to some other

color, is that correct? A. I don’t recall. It may have become

darker after a period of time, but I don't recall any

_—

Q. What color does one observe in this case? A. What are

the options?

Q. If we're checking for heroin, what color would we be

looking for? A. Be looking for a purple, reddish purple color.

Q. Reddish purple. Are there any other compounds which

would give the same purple violet color? A. Yes, sir, I believe

there are.

Q. Are there approximately about 45 other compounds that

will give out that same color, including a laxative that you can

purchase from your drugstore? A. I'm not sure about the num-

ber, no; I'm not sure about the laxative which I have never

tested.

Q. You're not a chemist, are you? A. No, I'm not.

[105] Q. Is the marquis test specifically for heroin? A. No,

sir.

Q. It's not specific; simply tests alkaloids in general, isn't

that true? A. As you stated, I'm not a chemist, so I'm not ex-

actly sure.

Q. So you don't even know what the test is? A. I don’t know

exactly everything that the test is, no, sir.

Q. But there have been other substances that would have

given the same reaction? A. That's correct, yes, sir.

Q. So, it was just a speculative conclusion on your part that

the substance was in fact heroin? A. That's correct.

Q. Isn't it a fact there are other opium derivatives besides

heroin that would have given that same color as well? A. I'm

not sure they give the specific same color. It is a test for all

opium derivatives; that’s correct.

Q. Now, you don’t know in fact where Chuck got the heroin

from, or the alleged heroin? A. That's correct, sir.

=

Q. Therefore, you don't know if the person who supplied

it to him made any statements regarding its chemical composi-

tion, [106] do you, other than it was heroin? A. Your question

is do I know what the person he obtained it from said to him?

Q. Right. A. No, that’s correct.

Mr. Lang: I don’t have any other questions, your Honor.

I would like to approach the bench.

(Whereupon, the following proceedings were had at the bench,

in the presence but out of the hearing of the jury:)

The Court: Mr. Lang has raised a question concerning the

qualifications of this witness and concerning, let’s say, what

Mr. Lang feels were prejudicial statement or inferences re-

garding this substance testing out to be heroin. I think that the

witness was quite clear in explaining that these were tentative

field tests and, accordingly, I am most willing to again mention,

summarize that fact to the jury, and that there were a number

of other substances which likewise could be checked out to be

this color. Is that suitable Mr. Lang?

Mr. Lang: Yes.

The Court: Mr. Dye?

Mr. Dye: That’s fine, your Honor.

I don’t have any other questions.

(Whereupon, the following proceedings were had in the

presence and hearing of the jury:)

The Court: Ladies and gentlemen, at the conclusion of

Agent McDowell's testimony I would just, with respect to the

portion concerning the tests that Agent McDowell has explained

he performed, I would mention to the jury, remind the jury,

that the agent stated that they were field tests and quite tenta-

tive in nature, that any number of substances apparently could

likewise result in this same purple reddish color, and that Agent

McDowell explained that he was not a chemist, and, accordingly,

—_— m=

as far as his testimony is concerned, the jury should take all

those factors into consideration. It was certainly not—Agent

McDowell would be the first to state, I believe, he could not

tell heroin from other substances.

Is there anything further?

Mr. Dye: Just one thing, your Honor.

(Whereupon, the following proceedings were had at the

bench, in the presence but out of the hearing of the jury:)

Mr. Dye: Your Honor, in my direct examination of Agent

Sawyer, I neglected io ask him if he could identify the defend-

ant. I would like to recall him at this time unless the defendant

would like to stipulate.

Mr. Lang: We will stipulate that he can identify the defend-

ant. It’s not an issue.

Mr. Dye: Could we inform the jury of that matter?

The Court: Yes, I will do it gracefully if I can.

[108] (Whereupon, the following proceedings were had in the

presence and hearing of the jury:)

The Court: You may step down, Agent McDowell.

(Witness excused.)

* * * * * * *

=

[110] DEFENDANT'S CASE

CHARLES HAMPTON,

being produced, sworn and examined in his own behalf, testified

as follows:

Direct Examination

By Mr. Lang

Q. What is your full name? A. Charles Hampton.

Q. But you prefer being called Chuck, is that right? A. Yes.

Q. Chuck, have you ever been known by any other name?

A. I have used an alias since being here in St. Louis.

Q. What was that name? A. It was Michael Chenoworth.

Q. Any other name? A. No.

Q. How old are you, Chuck? A. Twenty-seven.

Q. You have a son named Val, V-a-l, who is four years old

by Mary Carter, is that right? A. Yes.

Q. How much education do you have, Chuck? A. Presently

I'm credited with about two years of college, correspondence

and actual school.

Q. Did you go straight through high school, so forth? A.

No, I'm a ninth grade dropout.

[111] QO. You dropped out of the ninth grade. Where was that?

A. In Chicago, Illinois.

Q. After you left high school, Chuck, did you go into the

service? A. No, I didn’t directly. I kind of floated around be-

tween public schools in Chicago for about a year, dropping out,

missing courses, not passing, really.

Q. But you have been in the military, right? A. Yes, I did.

— =

Q. When did you go into military service? A. I enlisted

April 22, 1964.

Q. What branch was that? A. United States Marines.

Q. You say you enlisted. You weren't drafted? A. Yes, I

did enlist.

Q. What rank did you achieve? A. I went up to E-4.

Q. Where were you stationed? A. I was stationed in Cali-

fornia for a year, Vietnam for 12 and a half months and North

Carolina for the last year.

Q. Did you see any combat in Vietnam? A. Full 12 and a

half months.

Q. Did you receive any citations in Vietnam?

Mr. Dye: I object to that, your Honor.

{112} The Court: I'll sustain the objection.

Q. (By Mr. Lang) Were you honorably discharged? A. Yes,

I was.

Q. Were you in the Marines three years all told, is that

right? A. Three years and some days; almost three years and a

month.

Q. While you were in Vietnam, Chuck, did you become ad-

dicted to any drugs? A. I didn’t become fully addicted, but I

got the habit over there.

Q. What drug was that? A. I was starting off with opium,

it was easy to get over there; it was opium as far as I knew,

opium. I can’t be technical on it.

Q. After you got out of the service were you still using

drugs? A. Yes, I was. I went to heroin.

Q. What period of time? When would that have been?

A. I was discharged May 10, 1967, from North Carolina and

I had the habit then, and the addiction was becoming pretty

—

strong and I carried it back to Chicago with me. I went

straight home.

Q. How old were you when you returned to civilian life?

{113} A. May 10th when I got out, I was 23, I mean, excuse

me, 20, I'm sorry.

Q. Where were you living after you got out of the Marines?

A. In Chicago.

Q. What was the condition of your drug habit about that

time? A. When I first went home it wasn’t that bad, but it

became worse as time went on, and about three months after

being discharged, May 10th, September, about September, I

was fully addicted.

Q. Did you move away from Chicago? A. Not at that

time.

Q. Were you working after you got out of the Marines?

A. I was working for a while but the drug addiction hampered

me going to work on time or even being accurate and efficient

on the job, so I got fired out of two steel mills and the third

job I quit.

Q. And you say your addiction was becoming worse at

this time? A. Yes, it was.

Q. So you needed money to support your habit, is that

right? A. Yes, I did.

Q. Was this when you got involved in the armed robbery?

[114] A. Not directly.

Q. When did the armed robbery take place? A. This

armed robbery took place in North Carolina.

Q. How did you get down to North Carolina? A. By car

with a friend.

—_—

Q. Just on a short trip, visit or what? A. Well, it was a

trip to see some other people and on the way we were just

planning on doing anything we could to get some money.

Q. Were you convicted of this armed robbery? A. Yes,

I was.

Q. How old were you at that time? A. When I was con-

victed I was 23. —

Q. How long a sentence did you receive? A. Twenty-eight

to 30-year sentence.

Q. Twenty-eight to thirty years? A. Yes, it was more than

that but it was reduced some later.

Q. How much of that sentence have you served? A. Full

time, approximately four years.

Q. Now, you said that you had a ninth grade education

when you went into the Marines, is that right? A. Yes, ninth

grade dropout. I had further education but it was all self

taught.

[115] Q. When did you get your college credit? A. College

credit came to me in prison, I acquired that.

Q. Was that through a correspondence course? A. Yes,

I had six major courses through correspondence and the rest

came in regular school, going to street school.

Q. So you were involved in a program where you were not

always in prison, is that right? A. Yes, just before I left I was.

Q. Why did you leave? A. Well, I was being harassed by

a particular officer at the unit, and for some reason or an-

other he didn’t want to hold true to these new programs of

rehabilitation where inmates would leave the unit for certain

periods during the day, he didn’t believe—I won't say he

didn’t believe, he showed me he was kind of against it, at

least in my behalf.

—

Q. You were heavily involved in prison reform, is that

right? A. Yes, | was president of the grievance committee

and two or three other unit activities. I was vice president of

the Jaycees. ;

Q. Did you reach a point where you felt this prison official

was going \o terminate your involvement in this program out-

side of the prison? A. Yes, I did by his direct comment to

me. He let me know that one slip—a statement to the-———

[116] Mr. Dye: I'll object.

The Court: I'll sustain the objection. I think he’s gone into

it enough. I'll order that stricken, and the jury instructed to

disregard it. It’s hearsay, and I don’t think it’s proper in this

case.

Q. (Bv Mr. Lang) So, you walked away from that program,

is that right? A. Yes, I did.

Q. Where did you go? A. Where did I go after I walked

away?

QO. Yes. A. I went through North Carolina and Virginia. I

stopped at Norfolk, Virginia. I wired—I called home first and

had some money wired to me and I caught a bus all the way

to Washington, D. C., and at Washington, D. C., I went to Balti-

more and I was running out of money again, I called home and

had some more money wired to me, and from Baltimore I went

to New Jersey, Atlantic City, New Jersey,—Ocean City, first,

and then Atlantic City.

Q. When did you meet Mary in Chicago? A. In approxi-

mately late 1967.

Q. I’m not talking about when you first met her. When you

met her en route to St. Louis, or you didn’t? A. After I escaped

I finally made it back to Chicago [117] from New Jersey, money

was running out and nobody could wire anything, so I stayed

in New Jersey, I met some people, they let me stay with them,

—~

not knowing what I was doing or anything, they just knew |

was in bad shape, and they took me in and I stayed with them

for approximately six or seven days, until money was gotten

together. I was steadily calling home, and when I got back to

Chicago I looked up Mary.

Q. Did you all come to St. Louis together? A. Yes, we did.

Q. Now, when you got to St. Louis where were you living?

A. We first stayed at the Carousel Motel for about a week.

Q. Where is that located? A. On Kingshighway. I'm not

sure of the street that it’s near, but it’s on Kingshighway.

Q. Then did you move somewhere else? A. We moved to

the Kingsway Apartment Building on Kingshighway; 902, I

think, is the address.

Q. Your son was here with you in St. Louis, is that right?

A. Yes.

Q. How were you supporting yourself at this time? A. Well,

I have been gambling all of my life, and hustling, | shoot dice,

I shoot pool, pretty fair, I guess, and I play cards pretty good.

Q. Did you reach a point-——Mary brought some money with

[118] her as well? A. Mary had approximately $600 when we

left Chicago.

Q. That money, I take it, was starting to run out? A. Yes,

it was.

Q. Now, you have heard testimony about James Gray, that

you solicited him to get involved in a drug transaction, did you

solicit him or did he come to you? Just what happened? A.

James Gray came to me after we had become pretty closely

acquainted through this pool shooting thing. He was, as far

as I was concerned, a hustler like myself. He shot pool pretty

good. As a matter of fact, him and I were the best in the area

as far as known by anybody, or said anyway, and we became

pretty tight behind this mutual thing of being able to shoot pool

—

good. So I became closer to him than I had to guys like Gus,

Kenny, Mike and other people that were around the area, that

were around The Pud, usually, and I told him that I was up-

tight, that money was running out and I was in a situation

where I couldn't just go and get a regular job. I didn’t tell him

why, because I was on escape or anything, I just left it open

that I was uptight, and I couldn't get a job that easy, I was

looking around but I couldn't go and apply for something like

a post office job where I might be checked. So, I don’t know

what he took from that, but that wasn’t the important thing,

the thing was I did explain to him I was uptight and I told him

[119] if he knew anything about a way to get some money there

—or here in St. Louis that would be kind of clean that I would

go for it, and I needed some help.

Q. Did he bring an idea to you? A. Not at that time. He

said he had something in store; he said he would think about it,

and that’s all.

Q. When did you next discuss any type of drug?

When did you first discuss with him a drug transaction? A.

I didn’t even bring the drug transaction to him; it was brought

to me. As far as the discussior, he just

Mr. Dye: Your Honor, I don’t think that is responsive.

The Court: Sustained.

Q. (By Mr. Lang) Did he initiate the discussion about the

drug transaction? A. Yes, he did.

Q. When did that conversation take place? A. About three

days after this first mention to him of being uptight. When I

first mentioned to him I was uptight, about three days later.

Q. Where did that conversation take place? A. In The Pud.

Q. Was there anyone else there present who heard the con-

versation that you know? A. Guy named Kinney and another

guy named L. C.

— =

{120} QO. What did James say to you during the course of that

conversation? A. He didn't speak directly to me. He was speak-

ing to all three of us.

Q. What did he say to the group? A. That he had some-

thing that he was working on where we could make some money

and I inquired—I asked the question, I was curious as to what

it was, and he said he just had a little deal working where we

wouldn't have to ocme up with anything, any money anyway,

and we could make some money.

Q. He didn’t go into more detail about it? A. Not with

L.C. there, he didn’t like L.C. too much because he said he

was loose-mouthed or something anyway, but he discussed it

more with Kenney and I.

Q. When did he first go into detail about the transaction?

A. That same night; later that night.

Q. Where was this conversation taking place? A. In The

Pud.

Q. Who was there at that time? A. Gus was there, but he

kind of cut Gus out and told me that he would prefer for me to

be the main man, because he felt that I could handle it better,

I had more finesse, as he called it.

Q. What was the substance of hi. conversation with you?

[121] A. That he had a friend that was either a pharmacist or

worked in a pharmacy, and that he could get something that

would give the same reaction as dope, which in our conversation,

our jargon, dope meant heroin, that’s all we discussed it as,

but he said this will give the same reaction. and he had some

guys that he knew that he had known from Colorado, that's the

place he mentioned, and he said that, well, they were here now

and they were in the dope business and they were looking for

a buy, and that they had been burnt before, so they should be

easy pickings for something like this here, and all we were wait-

ing for was for this pharmacist friend of his to come up with

whatever he had.

- 66 —

Q. Did he mention the name of the substance? A. He didn’t

mention the name of it. He said it was just a compound of

stuff. I'm not that familiar with the new drugs they are using

on the street.

Q. Did he mention the pollutant? A. The pollutant was

mentioned later.

Mr. Dye: Your Honor, I'll object.

The Court: T'll sustain the objection,

Q. (By Mr. Lang) You don't know the name of the drugs

he was referring to? A. Not for the original mixture.

Q. Just an unspecified concoction? [122] A. Yes, all except

for one name.

Q. What was that name? A. He mentioned later that he

would use something that they were shooting on the street, just

like heroin, called pollutant, but he brought it up later and said

it was an additive that would strengthen this compound to really

make it seem like dope.

Q. You say this was called pollutant? A. Pollutant is all I

know.

Q. Do you know how to spell it? A. No, I haven't been able

to find it. I have been looking for it.

Q. You say you've been looking for it? A. Looking for it,

trying to find out the term.

QO. When was the next conversation that you recall having

with James and Gus setting up this transaction? A. Again that

night. This is the same day of when the conversation was first

introduced,

Q. Would you relate what went on in that conversation? A.

He told me he had—had been getting phone calls but he told

me one of the calls the guy said he couldn't handle it that night,

he couldn't get down to him. This was some guy named Archie

=— _

that was supposed to be at a pharmacy or something, and

he said the guy would take care of it tomorrow, [123] which was

the next day, and after he took care of that, he said he would—

soon as we got this package in our hands, he said he would

contact these buyers, and we'd set it up.

Q. Did James introduce you to a person who was going to

be a buyer? A. Yes, but this was only at the sale when I made

this first sale to him.

Q. Was this person black or white? A. This person was

black.

Q. What was his name? A. This was a guy named Frankie.

Q. His name was Frankie? A. All we knew him by was

Frankie. All I knew him by was Frankie.

Q. When did you last see Frankie? A. At the Federal Drug

Administration's office when they were questioning me.

Q. That was the day on which you were arrested? A. Febru-

ary 26th, right, that night.

Q. Who was questioning you? A. Federal Agent Sawyer

and the other one, McDowell, James, all I knew him by was

Jim, but the two who appeared here as a witness, anyway, they

were questioning me, and in walks this guy Frankie, and I'm

thinking that he’s busted at first, [124] and he starts to smiling

and he asked me a question of “Where's my money at, that bad

stuff you gave me?”

Q. This was the first person whom James introduced you

to to make a sale to, right? A. Right, at the Gregory Lounge.

Q. Where is the Gregory Lounge located? A. Somewhere

near Olive. There’s a place called Musical Sales on 3007 Olive,

which I went there to get a job, and this Gregory Lounge is in

an apartment like complex about two blocks from there, not

too much more. I don’t know the streets in St. Louis that well.

—

Q. So you made a sale of, we'll call it turkey, this fake or

counterfeit drugs to Frankie, is that right? A. Yes, this defi-

nitely was. I saw snuff put in this.

Q. Who supplied you with those? A. James came over with

the original package.

Q. Did you see him mix it up? A. No, he had it mixed

already. This is what he came from his pharmacist friend

with the next day, but I saw him put some snuff in it that he

said he was adding for color to make it look like brown dope

that they are getting today

Q. After this sale, when you made this sale you believed

that you were selling some counterfeit drugs to Frankie? A.

Some knd of drugs that would give the effect of dope; [125]

that’s all I know.

Q. Did you later learn that Frankie was looking for you

because he thought you had made a bad sale? A. Right, this is

the message I got from Gus through James. He said James

told him that Frankie had called

Mr. Dye: Your Honor, I will object. This is multiple hearsay.

The Court: Sustained.

Mr. Lang: I will withdraw the question, your Honor.

Following this initial termination that you were involved

in with Frankie, did you have any more conversations with

James concerning other buys, setting up transactions with an-

other buyer? A. Yes, but I—I don’t remember how long it

was. It probably came immediately after that—the split up

of the money, which was later that night. It didn’t come right

into focus right away.

Q. “Split up of the money,” what are you referring to?

A. Well, James and I split up some money and we gave Gus

some for riding with me, he was supposed to be my riding

—_— =

partner, like I was a big dope dealer and I had to have some-

body with me.

Q. So when was the next conversation? When did the

next conversation take place that you had with James about

another [126] narcotic transaction? A. Well, I started to

mention it earlier, but it was later that night, I did bring it

to James then, told him, I said, “I like what that was.” I

didn’t know at the time this Frankie guy might be out after

me, something, I didn't know that until the next day, but,

anyway, I mentioned it to him and told him it was pretty

nice, told him if he could do something like that again |

would be straight, by then I could get a job, something to

tide me over, hold me over, because the money we split on

this first deal was kind of small, for what I needed for the

family anyway.

Q. How much was that? A. I think we split up around

$200, and I gave Gus—well, we together gave Gus about

30, we split 170; James took $35.00 out of 170 for this

Archie, the pharmacist guy that was supposed to supply us

with this fake garbage, and whatever he supplied, well, it

had been arranged to give him some money back, plus a little

profit.

Q. So when you told James that, you knew, you were

satisfied the way the first deal had went A. Right.

Q. ———what did he say? A. Well, he just—he didn’t men-

tion anything about a deal at the time, I really was trying to

solicit it out [127] of him, you know, did he have any other

friends that were this foolish.

Q. When did he next talk to you about setting up another

sale? A. Well, the next day, we got into a small conversation

about it, and he mentioned that he might have somebody

else, but we would wait and see because he said that this

pharmacy guy would—he wanted, you know, a better deal

om Than

next time, he said he didn’t get enough money; figured we

had made some money.

Q. Following that conversation when did you next discuss

setting up a transoction? A. I guess it was about two or three

days then.

Q. Who was present at that time? A. He didn’t have any-

body present but me because I went to his room.

Q. This took place in James’ room? A. Right.

Q. Westgate Hotel? A. Well, it started in the lounge down-

stairs, and his girl friend, Mary, was there, and he didn’t want

to discuss it in the lounge because we couldn't get any pri-

vacy, so he said, “Let’s go up to the room.”

Q. What was the substance of the conversation you had

in the room? [128] A. Well, he brought up the fact he had

a good buyer here, this was some other people he had known

in the past, he didn’t say where they were from or what, but

he said they were ready to buy and that they were white. So

I asked him, “Well, what is going to be the whole thing on

this deal? Are we going to be able to get enough of this same

thing we just sold to this Frankie dude?” By then I knew,

or I had heard rumor that this Frankie was kind of looking

for me, so I told him that I really wasn’t too much worried °

to split by the fact he mentioned these white guys, instead of

going to more blacks, I felt it was more safe, because I didn’t

think whites would be coming in the neighborhood looking

for me that easy.

Q. Did James tell you what this substance was going to be?

A. He never mentioned what this basic substance was. I knew

pollutant was added, and I saw snuff put in before; but the pol-

lutant was supposed to be the strong additive.

Q. So you believed the substance that you were going to

next sell to those white buyers was the same one that you had

—=

sold to the black buyer, Frankie, earlier, is that mght? A.

Direct same thing, right.

Mr. Dye: Your Honor, I'll object. This is argument, it’s call-

ing for a conclusion on the part of the witness.

The Court: Sustained.

Q. (By Mr. Lang) When did you all make arrangements to

[129] set up the sale that took place on February 26th? A. At

least three days before, February 22nd or 21st.

Q. Where did you all make these arrangements? A. Again,

we made them in his hotel room because we had to discuss

where we were—or how we were going to get the money to-

gether to pay this guy Archie. James claimed Archie wanted

his money ahead of time this time for this fake mixture. Not

fake, I don’t know really what it was, but whatever this mixture

was, he wanted his money ahead of time.

Q. You were supposed to provide some money, then? A. I

was supposed to provide half of it because by me being one of

the principals in the first transaction, I split out half, so now,

I'm a half partner, so I was supposed to put up half of the money

and give it to this pharmacist or wherever he was, whoever he

was.

Q. So, did you give money to James? A. I didn’t have any

money to get together for him. The hustling was slow. I had

used all my money for the family. I gave it directly to my

common-law wife, Mary.

Q. So, in spite of the fact, James decided to go ahead with

the transaction anyway? A. Well, he said he would work some-

thing out and he probably could talk to the guy, and once he

got it together we'd be able to make the deal.

[130] QO. When did you make the sale on the 25th? A. The sale

was the night of the 25th. We had been, you know, a lot of

phone calls all that day, I had been hanging around The Pud,

and James and whoever he'd been talking to, other men, you

=—_

know, they had been calling, and calls came in to James, he

didn’t make calls just only, calls came to him.

Q. This sale was made to Officer Sawyer, the person who

you subsequently found out was Officer Terry Sawyer, right?

A. Right.

Q. He was in the company of Officer McDowell, Agent Mc-

Dowell? A. Right.

Q. And the substance that you sold at this time on February

26th, this was given to you by James Gray? A. Yes, it was.

On the way to the transaction, about one block from Delmar on

Kingshighway, going towards Lindell, I don’t know what the

street is, we had just passed a little club that was closed or

something, and he told me then, he said, “You better take the

package now”

Q. He handed you a package? A. Right.

Q. Was it a tinfoil wrapper similar to these? A. Yes, it was

bulky. It was heavy foil, I know, because my wife uses foil

cooking.

[131] O. You are not denying that you made a sale to Officer

Sawyer? A. No, I'm not.

Q. Of a substance? A. No, I'm not.

Q. Now, did Officer McDowell make some type of test at

the time that you delivered this substance to Officer Sawyer?

A. On the night of the 25th, which was the first sale, as they

said, I handed the package over to Terry, who was Agent

Sawyer, for inspection, which he hadn't handed me any money,

no transaction had been made at the time, I just handed him the

package and told him, “Here it is,” and he looked at it and he

turned around and said, “Jim, you want to check it out?” and

through checking it out, all I saw Jim do was take some type

of long pin that had a flat end, flat enough for—I don’t know

what kind of pin it resembles, something like a quill pin that

women use, a long pin, but it had a flat end, enough where he

=~

could take some of the mixture out of the powder, and he was

supported to be snorting it but he bent over in the back seat

with James, James was in the back seat with him, and he

bent down where I couldn't see him, so I'm just talking, Terry

was holding my attention pretty well, talking about the money

and so on, and the quality of the drugs I'm supposed io be sell-

ing, and all the time I'm thinking that Jim is snorting, or what

they call snort- [132] ing, taking it up his nose to see what

effect it would give. That was the test, as far as I understood it.

Q. And he told you that—Jim told you the substance was all

right? A. No, he started sneezing. He said, “What you got in this

stuff?” And I said, “That's the mixture on it,” and I was kind

of skeptical then, but he just said, “Well, it will do; it’s all right.”

He said, “It’s kind of weak.” So I told him, I said, “You can get

better stuff if you came up with bigger money,” and, you know,

this is when Terry took over the conversation and we started dis-

cussing a future deal.

Q. Did you discuss a future deal there in the car? A. Yes,

we did.

Q. What arrangements did you make as to the future deal?

A. Well, they wanted to do something the next day, which I

wasn't sure we could be ready for after all the trouble that

previous three days of getting this mixture together.

Q. That would have been February the 26th, is that right?

A. Right.

Q. When did you finalize your plans? A. Well, on the way

back, when they dropped us off on Delmar, they did drop us off,

they turned around, we were facing away from Delmar on

Kingshighway, and they turned around and went back towards

Delmar on Kingshighway, and during that time [133] they dis-

cussed the fact of where they could contact me, we didn’t have

a phone in our apartment, the wife and I, so I told him they

could call me at The Pud, and they asked me the number, James

gave them the telephone number of The Pud, and they asked me

on then

who to ask for, and I just told them Chuck, because that’s the

name I go—that’s my name, or the name I go by, that’s was

enough, and during this time they asked me would they be

able to get better quality dope, and I told him, I said, yes, I

would have to probably make a trip for it or, you know, see

somebody, I would have to make connections, I said, because

they got—lI just made an excuse, I told them they had gotten

the last package of anything I had, so this way I could probably

try to bide for time, I was—caught myself trying to get some

extra time.

Q. Now, this conversation was taking place when? A. On

the way back to Delmar.

Q. Did you talk to Officer Sawyer the next day, on the 26th,

on the phone? A. Yes, I did.

Q. Would you relate the substance of that conversation? A.

Well, he had told me he would call at a certain time. Well,

my regular habit was to get up very early and go around The

Pud and catch anybody I could on the pool table, try to make

some money. I was around The Pud earlier all that morning,

[134] Gus and I really, we were standing around waiting, and

he finally called about 11:00, 12:00 o'clock, sometime in the

afternoon, it was around 12:00 approximately, I don’t know

how close, but he called.

Q. Would you relate the conversation that you had with him?

A. Well, he called and he pointed out the fact that he would

be ready, he said he was ready with the money but he said he

wouldn't be ready to make it down there in that area for about

an hour, so I told him that this was good, I said, because I

hadn't gotten ready yet, I had made a little contact but my people

hadn't come through yet, and he just told me, he said, “Well,

I'll call back and find out how things stand.” This was the first

call at The Pud, and before he got off the phone I let him know

that there was another place I preferred him to call me, and it

was across the street.

—=— =

Q. What was the name of that place? A. This was Ja-Lo’s

Lounge, they had a better pool table, so I figured I would lay

over there, have a little better action.

Q. How do you spell Ja-Lo? A. J-a hyphen L-o.

Q. Did you later that day receive a phone call from Officer

Sawyer in Ja-Lo’s Lounge? A. Yes, I @id.

[135] Q. Would you relate what the subject of that conversa-

tion was? A. He told me he was ready to make the deal, and I

told him I needed a little time—well, I didn’t explain directly

that I needed time, but this was the substance of me really trying

to hold him off a little bit. Really, there had been another call, it

was two calls to Ja-Lo’s, it had to be, because the first call I tried

to get some extra time; the second call is when I told him I was

ready. But the first call, the girl at the lounge—what’s her

name?——Regina—answered the phone and she said that he had

called for me, and then when I came back in—I wasn’t in—

but it was another call that she said she received, some guy

named Terry had called for me is all that she said, and I told

her, “Well, this is good, because I didn’t want to talk to him,”

or anything, and I wanted to try to hold him off, and told her the

next call, if she could, would she look out the door to make

sure I wasn’t on the street because I wanted to receive the next

call.

Q. So, did you receive that call? A. Yes, yes, I did.

Q. Would you relate what the substance of that conversation

was? A. Well, we discussed the time.

Q. That was Officer Sawyer? [136] A. Officer Sawyer.

Q. Go ahead. A. We discussed the time and we didn’t go

into the price too much, but we discussed the time of making

this transaction, the place, the quality of the heroin supposedly,

and quantity, and really a few other general comments.

Q. So again at this point, from your standpoint, you were

just participating in a charade, is that correct? A. Yes, because

= =

James was gone at this present time to secure the stuff. This is

why I'm trying to get the put on me because James had been

gone all morning, he had been gone since before 12:00.

Q. Where did you think James was going to get the sub-

stance? A. He was supposed to be going to get some dope on

Sarah and Olive—in the area of Sarah and Olive, because I

had kind of finagled that information out of him overnight,

he had gotten high, he said he had gotten high and he looked

high, as far as I know, I have been addicted myself and he had

all the appearance of just having shot up some dope or some-

thing, but he said he was all right, and we were sitting in his

room talking, and he told me he had some people up on Sarah

and Olive that he had gotten pretty close to and he figured he

could make a good deal with them.

[137] Q. At this point what did you understand him to mean

by the terms of what he was about to get? Did you understand

what he was about to get? A. This was supposed to be the peo-

ple for the pollutant.

Q. And not heroin? A. No, because this pollutant thing was

what steadily » “pressed in my mind—he steadily impressed in

my mind was this strong additive over all this other compound

to really, you know, strengthen this fake dope.

Q. Now, when did you see James on the 25th—26th, rather,

and receive from him the substance that you later sold to Officer

Sawyer? What time of day was this? A. When he finally came

back, I guess it was about 4:00 o'clock, approximately.

Q. Had you seen James earlier in the day? A. Right, at

The Pud. Well, I got him up out of his bed that day, and he

was kind of reluctant to come on out, but I kind of pulled him,

told him, “Come on, let’s go ahead and get this last money, be-

cause this is probably it.” I really kind of wanted to cut the

deal because I was—I didn’t want to make over two deals with

these white guys, especially two days in a row. I figured by

=

them being close maybe they wouldn't have a chance to fill it

out, and know that we had duped them.

Q. So did you have to give James—did James ask you [138]

tor any money when you were in this hotel room? A. No, he just

told me he had shot up most of his money and he was pretty

low, so I told him I would put in his part that he had to pay for

the pollutant, it was supposed to be $30.00, for what we were

trying to get worth for this pollutant. Street price was approxi-

mately $6.00 a pill, or capsule, whatever they call it, and we

wanted five of them to strengthen up this big batch we were

supposed to be having this time.

Q. Big batch of what? A. Of this mixture, this Archie's

compound, or this pharmacist’s compound, whoever Archie

came from, I don’t know, but we had this already, and we

needed pollutant because I didn’t want to go and have this guy

Jim test it again, you know, go sneezing, you know, and maybe

come out, I don’t know what might have happened.

Q. So you did give James some money? A. Right, in front

of The Pud, and this is when he was trying to catch a cab, and

Gus called a friend of his, it was a friend of Gus that was driving

this cab that James got into go and get the pollutant; supposedly

anyway.

Q. And then James later returned? A. He returned, and he

had some brown substance in some tinfoil and it was a real

small amount, and I just asked him, I said, “Well, this is all you

get for,” you know, “$30.00?” [139] and this is when we got

into kind of a light argument, and he was acting high, so I

figured he had went and shot up some of the money and dope

and got some of the pollutant

Mr. Dye: Your Honor, I'll object.

The Court: I'll sustain the objection; the portion about what

he supposed and all will the stricken and the jury instructed to

disregard it.

—

Q. (By Mr. Lang) So, James gave you these tinfoil packets?

A. Yes, he did.

Q. How many did he give you? A. He gave me two, two

small packets, very small, nothing like the size of those exhibits.

Q. And these are the packets that you later took and sold

to Officer Sawyer and McDowell down at Maryland and Kings-

highway? A. No, these are the packages that were dumped in

this big compound and mixed all up, sifted it through and every-

thing.

Q. Who did this mixing up? A. James and I sat in his room

and did it.

Q. And then you transferred them to smaller packages, is

that what happened? A. Transferred it to one larger package;

in other words, the compound was in one large package, and

these two small packages, the one he had opened up and showed

me this small amount, [140] well, he had another one, and

when we finally got up in his room he just comes out with this

other one and said, “Well, this is all of it,” which still didn’t

satisfy me, but we mixed it up in the big package and put it all

together in the big package. First we opened and sifted it out,

we took it out of all the foil and sifted it through one of the girl

friend’s stockings with a hanger, and just kept sifting it through,

trying to make sure the pollutant would mix up, or supposedly

pollutant.

Q. What type of container or wrapper was the stuff in that

you sold to Officer Sawyer on the 26th? A. In a tinfoil wrapper.

Q. Who put it in the tinfoil wrapper? A. James fixed it up

after I finished sifting it.

Q. You did in fact sell a substance to Officer Sawyer on the

26th? A. Yes.

Q. Did you know at any time either on the 25th or the 26th

of February that you were selling heroin? A. No, I did not

know.

—_— we

Q. Did you ever intend to sell heroin to Officer Sawyer or

anyone else? A. No, this was the fake out, I thought I was

selling some kind of compound with pollutant in it, which I

don't know [141] what pollutant is till today.

Mr. Lang: I have no further questions.

You may inquire.

The Court: Excuse me just a second, Mr. Dye, maybe we

will have a ten-minute recess.

(Whereupon, short recess was taken, after which the trial pro-

ceeded as follows:)

The Court: Mr. Dye?

Mr. Dye: Thank you, your Honor.

Cross-Examination

By Mr. Dye

Q. Mr. Hampton, I believe you testified that your version

of this incident is that you were setting up a deal with counter-

feit substances, is that correct? A. Yes, sir.

Q. And I think you stated that you had risen to the position

of vice-president of the Jaycees when you were in the peni-

tentiary in North Carolina? A. Yes, sir.

Q. Do you think that is consonant with the position which

you reached in the Jaycees in North Carolina? A. To an extent,

sir, yes.

Q. Oh, is it really. Now, I think you stated also that you

had had several jobs after you came back to Chicago from

Vietnam [142] is that correct? A. Yes, sir.

Q. You were fired on the first two, but that you quit on the

other? A. Yes, sir.

Q. And I think you also stated that you were convicted of

armed robbery in North Carolina, is that correct? A. Yes, sir.

= =

Q. What was your sentence on that? A. Full sentence was

28 to 30 years and four to five years.

Q. And what happened at the end, during your serving of

that sentence, which made you want to escape? A. Well, I

felt that the program that I was in, I was being—lI was going

to be terminated.

Q. Oh, I see, and you just thought since the program was

terminated there wasn't any need for you to hang around, then?

A. No, it wasn’t on that level. I thought that I would be ter-

minated from the program, not the program terminated.

Q. I see. So the thought of your not continuing your educa-

tion was just so great that you couldn't stand to be in prison

anymore? A. No, sir.

[143] O. What was it, Mr. Hampton, what was your problem?

A. The fact if I was terminated from the program for any

menial, small violation of the penal regulations, that I would be

returned to the close custody in the prison walls, which is called

central prison.

Q. Isn't that just what I got through asking you? A. I don’t

know how you asked it; would you ask it again?

Q. The thought of going out of that program and going

back into the general population was just to great for you to

bear, isn’t that true? A. Yes, sir.

Q. Now, your version is that Mr. Hutton was the mainspring

behind all this, is that right? A. Yes, sir.

Q. And you, by your siatement earlier, I think you stated

that you had been addicted to heroin in Vietnam? A. Yes, sir.

Q. And so you know what heroin is, don’t you? A. Yes, sir,

I do.

Q. And you had no way of knowing in these three trans-

actions that you had dealings with, the first with I believe the

individual by the name of Frankie? A. Yes, sir.

= =

Q. And the counts in this indictment, you had no way of

[144] knowing that material was not heroin? A. I didn’t test

it, sir.

Q. I think you stated that Mr. Hutton’s statement was that

the substance which you had sold to Frankie on the first buy,

and to the agents on the second and third buys, contained pol-

lutant, is that correct? A. They call it pollutant in the street.

Q. And I think you also testified that he put some snuff in

it? A. This was the sale on the 25th, the second transaction.

Q. Did you hear the chemist testify yesterday? A. Hear the

who?

Q. The chemist. A. Yes, sir, I did.

Q. Did he say anything about snuff in any of the analyses?

A. No, I didn't, I didn’t hear him mention any other compounds.

Mr. Lang: Your Honor, may we approach the bench?

(Whereupon, discussion was had off the record at the bench,

in the presence but out of the hearing of the jury.)

The Court: [ll overrule the objection. He can answer the

question if he can.

Would you repeat the question?

(Whereupon, the reporter read the last question and [145]

answer.)

Q. (By Mr. Dye) Now, did you ever—lI think you made a

“burn”, what is called in the vernacular, with Frankie, is that

correct? A. Yes, I did.

Q. Did you ever try to contact Frankie again to make another

buy with him? A. No, I didn’t.

Q. Why didn’t you? A. I was afraid that there might be some

trouble, physical violence.

Q. For what reason? A. For burning him for his money.

—

Q. And you were contacted on the 26th, I believe, by Agent

Sawyer, is that correct? A. Yes, I was.

Q. And that was to make arrangements for a second trans-

action? A. Yes.

Q. So apparently you didn't feel like Mr. Sawyer would be

any problem to you, since you burned him by your statement on

the 25th, you didn’t think that he was going to give you any

trouble on the 26th, is that correct? A. Yes, sir.

[146] QO. So in the one instance you didn’t want to contact the

guy because you burned him, right? A. Yes, sir.

Q. But in this in ance you thought you burned him, with

Agent Sawyer, you thoeght you burned him on the first trans-

action with him, but yet you entered into another transaction, is

that correct? A. Yes, sir, he said he was satisfied.

Q. Now, weren't you a littke edgy when you made this deal on

the 25th, as far as being found out as to the fact that that sub-

stance was, by your claim, was not heroin? A. Yes, sir, I was

slightly edgy, but like I said, they were white, and James said

they had been burnt before.

Q. I don't want to know what James said, I'm just interested

in what you have to say. I think you stated that you were very

satisfied with the results of the burn with Frankie, is that cor-

rect? A. Yes, sir, the money, financially.

Q. And why did you need the money? A. Well, I didn’t have

a job.

Q. You wanted to get a job then or what? A. I had al-

ready secured a job, that week, of these two sales.

Q. I thought earlier in your testimony you stated that [147]

you couldn't get a job and that was the reason why you en-

tered into this in the first place. A. I had a job but I wasn't

working yet, | was due to go to work on Friday of that week

I got arrested on the 26th, which was the 26th.

= po

Q. You didn't say that in your direct, did you? A. I wasn’t

asked.

Q. Well, you didn't say it? A. No.

Q. I think your statement is that this transaction, or these

three transactions were initiated by your remark to Mr. Hut-

ton, or Mr. Gray, inquiring of Mr. Hutton if he knew of a

way to make clean money? A. Yes.

Q. What has happened here by your claim that you didn't

know this was heroin, then, was that clean money? A. What,

the transaction?

Q. Yes. A. It was clean money behind the fact that I

didn't have te do anything illegal. I was dealing with the

underworld as far as I was concerned.

Q. What is the vernacular term for what you did to, say,

Frankie? Is there a specific term? A. Not directly as far as

more than a burn.

[148] Q. Well, how about ripping off? Would that be an ac-

curate description? A. Right.

Q. And that is clean? A. That is clean money because

you're not dealing with the police, you don’t have police

trouble; you're dealing with underworld people.

Q. So if you weren't dealing with anybody other than po-

lice——well, let me ask you this. Strike that.

Let me ask you this; If you were dealing with just a com-

mon ordinary citizen, would that be a burn? A. You wouldn't

deal with a common ordinary citizen buying dope.

Q. Oh, really? A. Not that I know of.

Q. And as far as you know where did the first mention of

the introduction into your relationship between yourself and

Mr. Hutton, where did that introduction take place? A. At

The Pud Tavern, Lounge, Pud Lounge.

=

Q. I think you stated that you shot pool together quite a

bit? A. We were together approximately three weeks before

this first transaction, or the first transaction that I’m indicted

on, excuse me,

[149] ©. I'm sorry, would you please repeat? A. The first

transaction that I’m indicted on, that I'm charged with. This

Frankie thing came about 12, 15 days, almost two weeks

after I first met him.

Q. I think you also stated that Mr. Hutton approached you

with a fellow named Kenney and L.C., in the Pud Tavern one

night, is that right? A. Yes, he did.

Q. What was the substance, if you would enlighten us, as

to the conversation at that time? A. Well, he brought—

pointed out that he had a setup, he wouldn't mention spe-

cifically what it was in front of L.C. because he was skeptical

about him, as he said later, but he waited until L.C. got out

of our presence, then he brought the conversation to Kenney

and myself about a deal with a guy that had been burnt that

would take another burn if we could set him up.

Q. Let me ask you this: Is Kenney here today? A. No,

Kenney isn't.

Q. Is L.C. here today? A. No, he’s not.

Q. Why aren't they here, do you know?

Mr. Lang: Your Honor, I object.

The Court: I'll sustain it as to the form of the [150] ques-

tion,

Q. (By Mr. Dye) I think you stated also that after the first

buy, the first burn in your statement, was successful that you

quote tried to solicit further involvements of this kind using

what you have said to be “turkey” substances with Mr. Hutton;

did you solicit? A. If he could come up with another one, I

needed more money, I did bring th. point to him, yes.

= Fe

Q. So your position then is you didn't know the stuff was

heroin, right? A. At no time.

Q. And I think you are claiming, if I understand it, you

are claiming you were entrapped in this? A. That's the legal

term my attorney told me about; I just brought the circum-

stances.

Mr. Lang Your Honor, I object to the use of the word “en-

trapped.” 7

The Court: Sustained, order the answer stricken, the jury

instructed to disregard it.

Q. (By Mr. Dye) I think you also stated that your friend

Gus was told by Jule that he wanted-——that Jule wanted you

to be his main man? A, That what? Repeat the question.

Q. That Jule wanted you to be his main man. Did Jule

[151] say anything to Gus Logwood about that? A. No, not

that I know of. I'm not sure. I didn't hear anything of that

nature,

Q. And this Gus that you have been referring to, is that the

individual who testified earlier today? A. Yes, he is.

Mr. Dye: No further questions, your Honor.

Oh, just a few.

Do you know what is the term for “dizzope”, do you know

what that means?

A. That's a term, street term used for dope.

Q. And “spizoon,” s-p-i-z-0-0-n, do you know what that is?

A. That's a street term used for spoon,

Mr. Dye: No further questions.

The Court: Mr. Lang?

!

Redirect Examination

By Mr. Lang

Q. You testified that in one of the drug transactions that was

taking place James put some snuff in the compound, is that

right? A. Yes, as far as I knew; this was in his room.

Q. Now, which transaction were you referring to, the sale

to Frankie, the first sale to Terry or the second sale to Terry?

[152] A. This would have been the first sale to Terry, when

Jim started sneezing.

Q. You say that it was snuff; how do you know it was snuff?

A. He had a canister in his room that looked like a snuff canis-

ter. I'm using his term, snuff. That's all I thought would be

in it,

Q. You don't know for a fact that it was snuff; you just

assumed it was snuff? A. I just assumed it because it was

brown looking like snuff.

Q. Mr. Dye asked you if you knew in fact why one of the

individuals that was a witness to a prior conversation you had

with James was not present in the courtroom, named Kenney.

Do you know where Kenney is now? A. I don't know, but

my wife asked me why wouldn't he testify, and I asked her

would she check on it. She said that Kenney was in some po-

lice trouble or something.

Mr. Dye: I object to that as hearsay.

Mr. Lang: Mr. Dye opened up the question.

Mr. Dye: If he wants to impeach his witness, that's fine.

The Court: I'll sustain the objection and order the answer

stricken and the jury instructed to disregard it, on the [153]

grounds it’s hearsay as to what his wife said. If he knows——

Mr. Lang: I don't have any further questions.

Your Honor, I do have one other question.

=

Chuck, would you describe what heroin looks like? A. The

heroin I have seen since I have been back, since I have been

out of the penitentiary, has been brown. Before that it was

usually white, a white powdery flour-like substance.

Q. Looks like flour, sugar? A. Looks like flour, regular

flour; now it's brown, though, they have it brown now as far

as I know,

Q. Did you at any time taste or test any of the substances

that you were selling to any of these people? A. No, sir, I did

not,

Q. Why didn’t you?

Mr. Dye: Your Honor, I will object. I think this is beyond

the cross scope.

The Court: Sustained.

Q. (By Mr. Lang) When you were setting up the second

counterfeit transaction with Agent Sawyer, you had already

made one transaction with him, right? A. Yes, sir.

Q. And in your mind the second transaction was a counter-

feit transaction as well, right? A. Yes, sir, it was.

[154] Q. Why weren't you afraid of Officer Sawyer, setting

him up?

Mr. Dye: Your Honor, I object. I think the witness has al-

ready answered.

The Court: I think he has too, but I'll let him answer once

more. Overruled.

Go ahead and answer the question.

The Witness: Would you repeat the question, please?

Q. (By Mr. Lang) Why weren't you afraid of making an-

other sale to Officer Sawyer after you had set him up the first

time? A. Sir, there was several reasons involved. First, that

he was white, he could not have have easy access to the area,

because it was an all black area, as far as I could see, and he

had expressed satisfaction, or his tester had, the tester was the

other agent, McDowell, or Jim, and he expressed satisfaction,

although he claimed it was weaker than what he had expected,

but his expressed satisfaction made me believe the fake stuff

was good enough to at least try again, and then after that I

wouldn't worry because this was supposed to be the big sale.

Q. James told you this person was an experienced buyer

that offered to sell you the-—— .

Mr. Dye: I'll object, your Honor. This is a leading [155]

question.

The Court: I'll sustain the objection.

Q. (By Mr. Lang) Just a few more questions.

Who initiated all of the sales that you made to Officer Saw-

yer?

Mr. Dye: I think we've gone over this.

The Court: I think it’s repetitious. Sustained.

Mr. Lang: I have no other questions.

The Court: Do you have anything further, Mr. Dye?

Mr. Dye: No further questions, your Honor.

The Court: You may step down.

(Witness excused.)

The Court: We will be in recess until 1:30.

(Whereupon, the court was in recess until 1:30 o'clock p.m.

of Tuesday, May 7, 1974.)

—

TUESDAY AFTERNOON SESSION, MAY 7, 1974

Pursuant to adjournment as aforesaid, at 1:30 o'clock p.m.

of Tuesday, May 7, 1974, the court reconvened, present and

presiding as before, and the trial proceeded as follows:

(Whereupon, the following proceedings were had out of the

presence and hearing of the jury:)

The Court: Mr. Lang, have you rested?

Mr. Lang: Yes.

The Court: Defense has rested.

PLAINTIFF'S REBUTTAL TESTIMONY

(Whereupon, plaintiff, to rebut the testimony offered by de-

fendant, offered testimony, oral and documentary, and made

admissions as follows, to-wit:)

JULE HUTTON,

being produced, having been previously sworn, testified in re-

buttal as follows:

Direct Examination

By Mr. Dye

The Court: Mr. Hutton, I will remind you that you testified

earlier in this case and under oath, and that that oath still ap-

plies.

Q. (By Mr. Dye) Mr. Hutton, could you briefly tell the court

and the jury in your relationship with the defendant when the

question of narcotics was first discussed? A. The question of

narcotics was first discussed in The Pud Tavern on the evening

of February 25, 1974.

[174] QO. What, if any, conversation ensued between you and

the defendant? A. Before the conversation started, I was play-

—_ =

ing a game of pool and he was standing there next to the wall,

and I was dressed in a short-sleeved shirt, slacks, where my

arms were visible, and he saw some tracks.

Q. What do you mean by “tracks”? A. Needle marks from

using heroin before.

Q. What if anything did he say in response to seeing your

tracks, as you call them? A. Well, after I lost a game of pool,

myself and Mr. Hampton engaged in conversation where he

stated that he needed some money, and he knew some people

that had heroin he could get, and I told him, I said, “I know

some people that would be interested in buying some.”

Q. What if anything else did you say? What did he say after

that? A. Well, he then told me, said, “Well, why don't you try

and get in touch with those people and let me know what hap-

pens?”

Q. Did you have occasion to see him at The Pud Tavern

after that? A. Yes, I did.

Q. Approximately what day was this, do you recall? A. No,

I can't recall exactly, but it was during the [175] middle of the

week.

Q. What, if anything, happened when you met him in the

middle of the week? A Well, after I had talked to him about—

when he told me he could get the heroin, I then called Special

Agent Sawyer at the DEA office where I told him that I had

made a contact with the guy that I kaow as Michael Byers, and

he stated he could get some heroin and he would be willing to

sell.

Q. Did in any of your meetings at the tavern, were you ever

approached by the defendant and did he ever inquire of you as

to the people that you were talking about earlier in your conver-

sations with him? A. No, no more than he had asked me did I

know him and I told him yes, I did, and they was cool.

=

Q. Did he ever approach you and ask you—telling you that

he had gotten a package and could you get in touch with——

A. Yes, he did.

Q. What was that all about, if you could tell us? A. It was

late in the afternoon, I don't know the exact time, but he told

me that he had got the heroin and asked me had I talked to

those people, and I told him yes, I had, but I had to call them.

“I got to call them back because he was at work,” which I was

meaning a normal working job, not a special job, anything.

[176] Q. So, then, if I understand it correctly, the first men-

tion of heroin was by the defendant? A. Yes, it were.

Q. Let me ask you this: At any time in your engagement

with the defendant did you ever have occasion to give him any

heroin? A. No, I did not.

Q. Did you ever have occasion to give him any counterfeit

substances? A. No, I did not.

Q. Did you ever give him any money to buy any of these

things? A. No, I did not.

Q. Did you ever give him any meney to buy any of these

things? A. No, I did not.

Mr. Dye: No further questions, your Honor.

The Court: All right, Mr. Dye.

Mr. Lang?

Cross- Examination

By Mi Lang

Q. Now, you testified Mr. Hampton saw some tracks on

your arms? A. Yes, I did.

Q. How long do tracks on your arm usually remain after you

have used drugs? A. I used drugs from 1957 until some part of

‘60. They [177] last for a lifetime.

—_— -e

Q. You still have tracks on your arms? A. Yes, I do.

Q. You say the first conversation you ever had with Chuck

about drugs was in The Pud Tavern on February 25th, is that

right? A. Yes, I think it were; that’s right.

Q. You never had a conversation with him earlier with re-

spect to selling drugs to a man named Frankie? A. Yes, I did.

Mr. Dye: Your Honor, I think this is beyond the scope of

my direct examination.

The Court: I know it is, but I will let him inquire.

Overruled. Go ahead.

Q. (By Mr. Lang) Well, then, your last statement was not

true then that you never had a prior discussion with him about

drugs, about a narcotics transaction? A. I was speaking about

the narcotic transaction that happened on February 25th.

Q. That's not what I asked you about, though. I asked you

had you had any prior conversation——— A. And I answered

yes, I did.

Q. What was the substance of that conversation that you had

with him regarding Frankie and the drug transaction?

[178] The Court: Well, now, wait a minute. I think now we're

going beyond it, and I will direct you to question relating to

matters—it’s all right to have him explain the answer, and I

think you elicited it in the proper fashion as far as the other.

Q. (By Mr. Lang) Now, your statement here that prompted

Chuck’s attention or put into his mind the question that you

might know something about drugs was the fact he saw tracks

on your arm, is that right? A. Repeat.

Q. Saw some tracks on your arm and that’s what prompted

his attention to engage in this conversation about drugs, is that

right? A. I don’t understand. Repeat that, will you?

—_ Fe

Q. You just said that Chuck saw some tracks on your arm

and because he saw these, therefore, he asked you did you know

anything about to whom he could sell some narcotics? A. Well,

first he asked me, he was telling me that he needed some money,

and he mentioned—he mentioned heroin, said he could get

some that he would be willing to sell. So I told him that I knew

some people that would be willing to buy it.

Q. When did he mention the tracks on your arm? A. He

never did mention the tracks. I say | was wearing a short-

sleeved shirt and the tracks were visible.

[179] Q. You don’t know that he saw the tracks or not? A. No,

I assumed that he did.

Mr. Lang: I don’t have any further questiens.

The Court: All right, Mr. Lang.

Mr. Dye?

Mr. Dye: Just a few.

Redirect Examination

By Mr. Dye

Q. Since you have been back in St. Louis, have you used

heroin? A. No, I have not.

Mr. Dye: No further questions.

The Court: Anything further, Mr. Lang?

Mr. Lang: No.

The Court: You may be excused.

(Witness excused.)

[197] (Whereupon, the following proceedings were had in cham-

bers, out of the presence and hearing of the jury:)

The Court: On the record, let it be shown that we are going

over the instructions with the agreement between counsel and

=

the court that counsel need not make any further objections at

the completion of the court's reading of same to the jury, that,

in other words, the objections, if any, made by counsel at this

time will stand as their objections to the instructions unless

otherwise noted and objected to.

Is that correct, Mr. Lang?

Mr. Lang: That's correct.

The Court: Is that correct, Mr. Dye?

Mr. Dye: That's correct.

The Court: The first instruction I intend to give—and gentle-

men, express any objection, and if you want to make a record

on that other question, Mr. Lang, wait till the end—is the

“Members of the Jury” instruction.

Next would be the “Burden of Proof, Presumption of Inno-

cence, and Reasonable Doubt.”

Next, “consider the instructions as a whole, don't single out

one.”

Next, “The indictment is not evidence of guilt.”

Next quotes the statutes and the indictment.

Next, the elements instruction.

Next instructs the jury to consider each act [198] separately,

et cetera.

Next, definition of “distribute” and “deliver”.

Next, definition of “knowingly”.

Next is requirement of proof of specific intent.

Next is the one on circumstantial evidence.

Next, “heroin is a controlled substance.”

Next, the quantity of heroin, et cetera.

Next, expert witnesses.

Next, “Evidence of defendant's previous conviction of a felony

is to be considered by the jury,” et cetera.

—_

Next, “testimony of a witness may be discredited,” et cetera,

by showing conviction of a felony.

Next, “testimony of an informer.”

Next, “The law does not compel a defendant to take the

stand, imposes no duty on defendant to testify or call witnesses.”

Next, “defendant, however, is a competent witness,” et cetera.

Next is the credibility of witness’ instruction.

Next is weight of evidence not determined by number of wit-

nesses.

Last is the instructions concerning the verdict forms and then

the verdict form.

There's no objection to any of those instructions by either

party, am I correct?

[199] Mr. Lang: It is correct.

Mr. Dye: No objection.

The Court: Now, Mr. Lang, you have filed a motion that

has not been ruled upon until this time relating to an entrap-

ment instruction?

Mr. Lang: That's correct.

The Court: Do you desire to stand on that motion at this

time or do you want the court to rule on it?

Mr. Lang: I don't want to stand on the motion; I would

request a ruling from the court at this time.

The Court: After consideration of Mr. Lang’s motion, which

is on record, and it is entitled, “Defendant's Motion for a

Special Jury Instruction on the Defense of Entrapment,” I

will overrule that motion and accordingly will not give the

. —

proposed instruction on entrapment because it is the opinion

of the court that under the evidence of this case and the law

regarding entrapment that such instruction would be improper.

{200} (Closing arguments of counsel are not included herein.)

COURT'S CHARGE TO THE JURY

The Court: Members of the Jury:

You have heard all of the testimony in this case and argu-

ment of counsel and it now becomes the Court's duty to give

you the law that should govern you in your deliberation in

reaching a verdict in this case.

The law applicable to this case is given to you in these in-

structions. It is your duty to follow all instructions. They

will only be given to you orally, as I am now doing. You

should bear in mind that while it may appear from time to

time that I am giving you special instructions, that is not cor-

rect. The instructions I give should be received by you to

apply as a whole. Don't attempt to separate and disregard

part of them and use and apply the remainder.

Faithful performance by you of your duties is vital to the

administration of justice. It is your duty to determine the

facts, and to determine them from the evidence and the rea-

sonable inferences arising from such evidence, and in so doing

you must not indulge in guesswork and speculation.

The evidence consists of the testimony of witnesses, stipu-

lation of counsel, and the exhibits admitted in evidence. The

admission of evidence in court is governed by rules of law.

From time to time it has been the duty of the attorneys to

make [201] objections and my duty as Judge to rule on those

—

objections and whether you can consider certain evidence.

You must not concern yourself with the objections or the

Court's reasons for these rulings. You must not consider tes-

timony or exhibits to which an objection was sustained or

which has been ordered stricken.

Opening statements and closing arguments of the attorneys

are intended to help you in understanding the evidence and

applying the law, but they are not evidence.

You must not be influenced in any degree by any personal

feeling of sympathy for or prejudice against any party to this

suit, for each party is entitled to the same fair and impartial

consideration.

It has been and will be the Court's purpose to express no

Opinion upon the facts in this case, for that is the sole province

of the jury, and if you have thought at any time during the

trial that the Court has indicated any opinion with respect to

the facts, you may disregard it, because I have meant nothing

by voice or manner to indicate any opinion upon what is or

is not a fact in this case, and if at any time during this charge

you get the impression that the Court is indicating his own

view with respect to the facts, remember ‘hat is not at all

conclusive upon you. You and you alone shall determine

what the facts are in this case.

This is a criminal case, as you know. The burden [202]

to make out the guilt of the defendant on trial in this case

is upon the government; that burden the government assumes

in the beginning and carries throughout to the end, until it

has met it by showing to you the guilt of the defendant be-

yond a reasonable doubt. The law never imposes upon a

defendant in a criminal case the burden or duty of calling any

witnesses or producing any evidence.

All of the presumptions of the law, aside from the evidence,

are in favor of innocence and the defendant is presumed to be

. 98 —

innocent until proven guilty. This presumption of innocence at-

tends and protects the defendant throughout the trial until it has

been met and overcome by evidence coming forward in the case

which shows and establishes the defendant's guilt beyond a rea-

sonable doubt. Unless you find the defendant guilty beyond a

reasonable doubt, you shall acquit them.

It is not required that the government prove guilt beyond all

possible doubt. The test is one of reasonable doubt. A reason-

able doubt is a doubt based upon reason and common sense-—

the kind of doubt that would make a reasonable person hesitate

to act. Proof beyond a reasonable doubt must, therefore, be

proof of such a convincing character that you would be willing

to rely and act upon it unhesitatingly. Putting it in another way,

a reasonable doubt means a doubt based on reason and not the

mere possibility of innocence.

In your deliberations you are not to single out one [203] in-

struction alone, but instead consider the instructions as a whole.

The indictment is not to be considered by the jury as any

evidence of the defendant's guilt. It ought not, in your minds,

create even a suspicion of guilt upon his part. It is merely the

manner by which the case is brought before you, for your con-

sideration, and the fact that an indictment has been returned is

not to be considered as any evidence of the guilt of the defend-

ant.

Prosecution in this case is based upon a statute which is Fed-

eral law. The statute upon which this prosecution is based reads,

in pertinent part, as follows:

_ , It shall be unlawful for any person knowingly or

intentionally . . . to. . . distribute . . . a controlled

substance.”

The Indictment brought under this statute reads as follows:

“The Grand Jury charges:

—=—

“That on or about the 25th day of February, 1974, in

the City of St. Louis, State of Missouri, within the Eastern

Division of the Eastern District of Missouri, Charles Hamp-

ton, a/k/a Michael Byers, knowingly and intentionally did

distribute approximately 1.5092 grams of heroin, a Sched-

ule I narcotic drug controlled substance.

[204] “In violation of Title 21, United States Code, Sec-

tion 841(a)(1).

“Count I

“The Grand Jury further charges:

“That on or about the 26th day of February, 1974, in

the City of St. Louis, State of Missouri, within the Eastern

Division of the Eastern District of Missouri, Charles Hamp-

ton a/k/a Michael Byers, knowingly and intentionally did

distribute approximately 1.8854 grams of heroin, a Sched-

ule I narcotic drug controlled substance.

“In violation of Tithe 21, United States Code, Section

841 (a)(1).”

The essential elements of these offenses, each of which the

government must prove beyond a reasonable doubt, are:

First: That the defendant distributed heroin, a controlled sub-

Stance; and,

Second: That the defendant did so knowingly and intention-

ally.

The Court instructs the jury that as you have noted a separate

crime or offense is charged in each count of the indictment.

Each offense and the evidence applicable thereto should be con-

sidered separately. The fact that you may find the accused

guilty or not guilty of one of the offenses charged [205] should

not control your verdict with respect to any other offense

charged.

100 —

The term “distribute” means to deliver. . . a controlled sub-

stance.

The term “deliver” means the actual or constructive .

transfer of a controlled substance.

The term “knowingly” as used in these instructions means

that the act was done voluntarily and purposely and not because

of a mistake or accident. Knowledge may be proved by the

defendant's conduct and by all the acts and circumstances sur-

rounding the case. No person can intentionally avoid knowledge

by closing his eyes to facts which should prompt him to investi-

gate,

The crime charged in this case is a serious crime which re-

quires proof of specific intent before the defendant can be con-

victed. Specific intent, as the term implies, means more than

the general intent to commit the act. To establish specific intent

the government must prove that the defendant knowingly did

an act which the law forbids, urposely intending to violate the

law. Such intent may be determined from all the facts and cir-

cumstances Surrounding the case.

Intent may be proved by circumstantial evidence, It rarely

can be established by any other means, While witnesses may

see and hear and thus be able to give direct evidence of what a

defendant does or fails to do, there can be no eye- [206] witness

account of the state of mind with which the acts were done or

omitted, But what a defendant does or fails to do may indicate

intent or lack of intent to commit the offense charged.

You are instructed as a matter of law that heroin is a con-

trolled substance. You must ascertain whether or not the ma-

terial in question was in fact heroin, In so doing you may con-

sider all evidence in the case which may aid in the determination

of that issue, including the testimony of any expert or other

witness who may testify either to support or to dispute the al-

legation that the material in question was heroin.

— 101 —

In the indictment, it is alleged that a particular amount or

quantity of heroin was involved. The evidence in the case need

not establish that the amount or quantity of heroin was as al-

leged in the indictment, but only that some measurable amount

of a heroin drug was in fact the subject of the acts charged in

the indictment.

The rules of evidence ordinarily do not permit witnesses to

testify as to Opinion or conclusions. An exception to this rule

exists as to those whom we call “expert witnesses”. Witnesses

who, by education and experience, have become expert in some

art, science, profession, or calling, may state an opinion as to

relevant and material matter, in which they profess to be expert,

and may also state their reasons for the opinion.

[207] You should conseider each expert opinion received in

evidence in this case, and give it such weight as you may think

it deserves. If you should decide that the opinion of an expert

witness is not based upon sufficient education and experience, or

if you should conclude that the reasons given in support of the

opinion are not sound, or that the opinion is outweighed by

other evidence, you may disregard the opinion entirely.

Evidence of a defendant's previous conviction of a felony is

to be considered by the jury, only insofar as it may affect the

credibility of the defendant as a witness, and must never be

considered as evidence of guilt of the crime for which the de-

fendant is on trial.

The testimony of a witness may be discredited or impeached

by showing that the witness has been convicted of a felony, that

is, of a crime punishable by imprisonment for a term of years.

Prior conviction does not render a witness incompetent to testify,

but is merely a circumstance which you may consider in deter-

mining the credibility of the witness. It is the province of the

jury to determine the weight to be given to any prior conviction

as impeachment.

a 108 <=

The testimony of an informer, or any witness whose self-

interest or attitude is shown to be such as might tend to prompt

testimony unfavorable to the accused, should always be consid-

ered with caution and weighed with great care.

[208] The law does not compel a defendant in a criminal case

to take the witness stand and testify, and no presumption of

guilt may be raised, and no inference of any kind may be drawn,

from the failure of a defendant to testify.

As stated before, the law never imposes upon a defendant in

a criminal case the burden or duty of calling any witnesses or

producing any evidence.

A defendant who wishes to testify, however, is a competent

witness; and the defendant's testimony is to be judged in the

same way as that of any other witness.

You, as jurors, are the sole judges of the credibility of the

witnesses and the weight their testimony deserves.

You should carefully scrutinize all the testimony given, the

circumstances under which each witness has testified, and every

matter in evidence which tends to show whether a witness 1s

worthy of belief. Consider each witness’ intelligence, motive

and state of mind, and demeanor and manner while on the

stand. Consider the witness’ ability to observe the matters as

to which he has testified, and whether he impresses you as

having an accurate recollection of these matters. Consider also

any relation each witness may bear to either side of the case;

the manner in which cach witness might be affected by the

verdict; and the extent to which, if at all, each witness is either

supported or contradicted by other evidence in the case.

[209] Inconsistencies or discrepancies in the testimony of a

witness, or between the testimony of different witnesses, may

or may not cause the jury to discredit such testimony. Two

or more persons witnessing an incident or a transaction may

-— 103 —

see or hear it differently, and innocent misrecollection, like

failure of recollection, is not an uncommon experience. In

weighing the effect of a discrepancy, always consider whether

it pertains to a matter of importance or an unimportant detail,

and whether the discrepancy results from innocent error or

intentional falsehood.

After making your own judgment, you will give the testimony

of each witness such credibility, if any, as you may think it de-

serves.

The weight of the evidence is not necessarily determined by

the number of witnesses testifying on either side. You should

consider all the facts and circumstances in evidence to de-

termine which of the witnesses are worthy of greater credence.

You may find that the testimony of a smaller number of wit-

nesses on one side is more credible than the testimony of a

greater number of witnesses on the other side.

I have caused to be prepared for you, ladies and gentlemen,

a blank form of verdict. You will use the form that I shall

submit to you for both Count I and Count II whether you find

the defendant guilty or not guilty.

You must make a finding as to each count. When you

[210] have unanimously agreed upon the verdict, you will in-

sert the words “guilty” or “not guilty” as to each count as you

may find and believe from all the evidence.

You have nothing to do with the punishment, that ts for the

Court. Your sole duty is performed when you have found

upon the question of guilt or innocence of the defendant.

When you have unanimously agreed upon the verdict, one of

your number will sign the verdict form as foreman and return

it into Court.

Mr. Zickler.

—_—

Ladies and gentlemen, I will ask you t

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