United States of America Ex Rel. Willie Toler v. Frank J. Pate, Warden, Illinois State Penitentiary

332 F.2d 425, 1964 U.S. App. LEXIS 5450

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 6, 1964
• Docket: 14379
• Status: Published

Opinions

ENOCH, Circuit Judge.

The petitioner, Willie Toler, sought and was denied a writ of habeas corpus in the United States District Court, where he contended, as he does here, that he was denied due process of law at his trial, and that he should have been discharged because he was “entrapped into committing a crime, which he had no intention of committing.”

There was no oral argument in this Court. The appeal was considered on the record and the briefs. Petitioner was tried and convicted in a Cook County, Illinois, Court, of selling narcotic drugs on two occasions. He was sentenced to serve for ten to twenty years in the penitentiary. On appeal, that conviction was affirmed by the Illinois Supreme Court, People v. Toler, 26 Ill.2d 100, 185 N.E.2d 874, cert. den. U. S. Supreme Court, 374 U.S. 813, 83 S.Ct. 1705, 10 L.Ed.2d 1036.

Petitioner asserts that he was a law abiding citizen with no prior criminal record when he was approached by one Edward Unsell, an old acquaintance and former fellow employee, who persistently urged petitioner to secure narcotics for him, calling on him at his place of business so often as to attract the notice and disapproval of petitioner’s employer to the jeopardy of his job. Petitioner asserts that the drugs were purportedly soughlt for an addict in urgent need, the dying son of a dentist who was no longer able to secure the necessary narcotics legally. Petitioner contends here, as he testified at his trial, that he yielded only out of sympathy, without profit to himself, to repeated urging by Mr. Unsell, who, unknown to him, was a police informer, and, finally, to the further importunings of Chicago police officer Richard Tracy, who was introduced to petitioner by Mr. Unsell as an employee of the needy addict’s father. Petitioner states that Officer Tracy indicated a need for $3,000 or $4,000 worth of narcotics and wanted to secure a sample for $100.

Petitioner states that the facts are undisputed and show entrapment. However, the testimony of Officer Tracy indicates (as the Illinois Supreme Court stated in its opinion, 26 Ill.2d 102) that petitioner made the two sales when the funds were shown to be available, and exhibited an intent and willingness to commit the crime by his then ready complaisance and quick access to substantial quantities of illegal narcotics.

Petitioner utilized a rather complicated and cautious method of delivery. He met Officer Tracy and Mr. Unsell at a tavern, drove with them in the latter’s automobile, directing them to an alley where he pointed (in one sale) to a telephone pole, stating that the narcotics were contained in a cigarette package at the foot of the pole, and (in the other sale) to a lamp post, stating that the narcotics were under the top pages of a magazine at the foot of the post. At the time of his arrest, according to Officer Tracy’s testimony as set out in petitioner’s brief, he was told that the police were primarily interested, not in him, but in his “connection.” When asked to assist the police, petitioner said he would have to think it over. At his trial, petitioner testified that he was merely a go-between, that the narcotics in each instance were placed in the locations he indicated by “a fellow by the name of Harry.”

Petitioner waived the right to trial by jury and was tried by the Court. We cannot disregard the Trial Judge’s findings on the issues of credibility. Obviously the Trial Judge who saw and heard the witnesses did not accept petitioner’s version of the circumstances of the sales.

The lack of a prior criminal or narcotics record, or of substantial reason to suspect petitioner of dealing in narcotics, does not of itself make this a case of entrapment. People v. Gonzales, 25 Ill.2d 235, 238, 184 N.E.2d 833 (1962); People v. Wells, 25 Ill.2d 146, 149, 182 N.E.2d 689 (1962).

The circumstances of the case as revealed in the testimony provide substantial evidence to support the evident conclusion of the Trial Court that petitioner was merely provided with an opportunity to commit a crime for which he was apt and willing.

The respondent argues other issues respecting petitioner’s alleged failure to raise any question under the Fourteenth Amendment in the Illinois Supreme Court, and the character of the defense of entrapment with respect to raising a question under the United States Constitution. We do not reach these issues as our decision of the entrapment question is dispositive of this appeal.¹

The decision of the District Court is affirmed.

Affirmed.

1 . See United States of America ex rel. Walter Hall v. People of the State of Illinois, 329 F. 2d 354,1964 (7 Cir.).