United States v. John A. Mendell
447 F.2d 639
7th Cir.
1971
Check Treatment

*1 shipments stop on further order plain- defendant, made was America, UNITED STATES defend- its to the issued cheek tiff had Plaintiff-Appellee, $1,848.15, returned was which ant ” ‘insufficient funds.’ marked MENDELL, Defendant-Appellant. John A. ap- findings it trial court’s Under the No. 18535. justified so parent the seller was Appeals, United States Court Sep- withholding performance on further Seventh Circuit. 17,1963, could until some solution tember 29, June 1971. previous failure for the be reached 30, Rehearing Aug. Denied pay. com- plaintiff to the official See present Uniform Com- ment under the C.R.S.1963, at mercial Code 155-2-612 express provisions as well as 121-1-45, formerly Act

Uniform Sales sought by This solution was C.R.S.1963. conference, parties in their and was

the agreed upon meeting

at the of October 1963, mutually

3, when the contract was This thus came be-

rescinded. rescission party formal

fore either had taken to terminate or

action the contract other cir-

seek remedies. Under these per- provisions

cumstances the contract mitting termination contract aft- operative.

er The notice never became shipments September

termination of meeting parties of the

at which the mutual rescission

agreed upon really part were of the both Judge, Stevens, concurred same mutual termina- transaction —the opinion. and filed relationship. tion of the plaintiff in

The its motion and author rehearing

ities for cites Carleno Coal Sales, Ramsay Co., Inc. v. Coal Colo. 270 P.2d where the court con importance provi

sidered the of notice prior

sions to contract termination agency contract,

other remedies an Corp. City Northwest Water of West

minster, 164 Colo. P.2d again

where the Colorado court consid provisions relating

ered notice con point

tract termination. no The toas plaintiff argues pertinent

tice the is not issues,

to the the above cases cited applicable are not to the facts in this

case where there was no termi contract

nation other than rescis mutual

sion.

Affirmed. *2 Ill., Echeles, Chicago,

Julius Lucius appellant. for Bauer, Atty., Thomas William J. U. S. Ill., Chicago, Dent, Atty., G. U. S. Asst. plaintiff-appellee; Lu Peter John linski, Cole, Attys., Jeffrey Asst. U. S. of counsel. SWYGERT, Judge,

Before Chief CUMMINGS, STEVENS, Circuit Judges.

CUMMINGS, Judge. trial, After bench defendant was guilty found an indict- on Count 2 of charging ment narcotics offenses various years pris- and was sentenced to five charged on.1 Count that defendant unlawfully Robert French received acquitted 4; Defendant Counts Counts and 6 had been dismissed opening Government at the of the trial. imported heroin in vio- Dean 15.301 lation 21 U.S.C. v. Luk- § enbill, I opinion Nor does the objects first the dis- Defendant Court in United *3 granted mo-

trict court should have (7th 1949), require 746 a different Cir. judgment at the in arrest close tion of result. that The Court there observed because venue of the Government’s case proof not “venue will be inferred from Relying upon proven. United was not constituting that the acts the crime were Jones, (7th Cir. 174 F.2d 746 upon streets, committed certain where argues 1949), lack of that the city the the lo within which streets are any explicit Chicago, Illi- reference to cated is not identified. The court will nois, the location of the transactions as judicial not take that notice the streets insufficient. rendered the evidence referred in to the are in evidence p. certain town.” 174 F.2d at De 749. by need not be shown Venue suggests language fendant that for may evidence, proven direct but be any judicial bids notice of whatsoever the evidence as a whole or circum geographic particular the location of stantial evidence. Venue is established proof streets as of venue. to We decline testimony justifies where the the reason give sweeping import such to these re inference that violation occurred able the marks. alleged place in the indictment. at 732, Budge, United v. 359 F.2d States may Judicial notice be taken (7th 1966); Cir. United States v. 734 commonly of matters which are either so Chiarelli, 528, (7th F.2d Cir. 532 community in known within the as to be 1951), denied, certiorari 342 U.S. among men, disputable reasonable or 683; 72 S.Ct. 96 L.Ed. capable which are of certain verification Karavias, (7th F.2d 968 Cir. through authority. recourse to reliable Evidence, See McCormick on 324-325 agree §§ with the district court We (1954); 201(b), of Rule Revised Draft testimony that of the Government’s Proposed Rules of Evidence for Unit sufficiently proved witnesses not venue Magistrates (March ed States Courts and withstanding any spe the omission of 1971) (51 315, 331). Among the F.R.D. city cific in indication of the which the long recognized proper as sub matters place. replete events took The record is jects range judicial notice are wide testimony identifying streets, inter facts, including geographic sections, location. major thoroughfares, business geographic The establishments, determination location parks.3 Both in vol distinctiveness, of a street or other landmark mentioned ume and this evidence testimony First, steps. in involves two was tantamount to a testimonial declara judicial may city, place Chicago. notice be taken that the tion that the acts took in county, geographical Budge, or other area con (7th 1966); tains a street of that name. Cir. Walker v. United The second step States, involves the inference cer that the street actually denied, mentioned is tiorari that 89 S.Ct. located U.S. within specified 563; boundaries. 22 L.Ed.2d reason Weaver The ableness of the geographic inference as to purchased Chicago, 2. not at French was a defendant the bench here been in these pleaded previously trial because he had exhibits were never received in evidence. guilty five-year Therefore, and received concurrent defendants’ motion strike to sentences on six counts the indict- reference in thereto at 14 and Appendix ment. of the Government’s brief granted. Although rely 3. the Government seeks to on three exhibits to show that the heroin Agents evidence in the sale of heroin. venture circumstantial from location like, Gallagher their streets, landmarks, and Rankin testified such as degree. must and French’s case of defendant’s Each observation matter of is a together suspicious on two activities facts. judged on its own be Agent August nighttime occasions on land or other streets Where overhearing an ex- also testified Nolan commonly in number marks are few named, damaging tremely between conversation location as to exact doubt their hotdog p. m. stand 11:00 them about may compelled remains, the court evening. that same These conversations Thus fact. notice of that to withhold subsequent actions harmonized with place the refused this Court French and defendant that were observed testimony streets mentioned “several” night. Consequently, still later Chicago. City hold That within the *4 apart to from statements of French not, extrapolated ing however, should be sufficiently Gallagher, the Government judicial prohibition notice of into blanket joint a defend- showed venture between Where, city. are certain that streets French, ant and so the district court that sufficiently here, are as the landmarks entitled to narra- was consider French’s notorious, inference numerous and the Gallagher tion to of conversations be- they particular are a that located within tween French defendant.4 municipality jurisdiction of within the may properly made. Here the court be Ill suffi the circumstantial ciently was evidence point that final Defendant’s is of extensive and characteristic pos evidence did not that he Chicago show that the to warrant the inference grams question. sessed the 15 in heroin criminal acts in occurred the Northern It is that evi well settled circumstantial District Illinois. support dence is sufficient to convictions of narcotics offenses. v.

II Spencer, (7th 415 F.2d Cir. 1303 Lawler, dis 413 Defendant that the United contends hearsay (7th 1969). judge improperly F.2d trict admitted 622 Cir. We conclude by justified in that the trier of inferring statements made French facts was co-defendant agent Gallagher, packages passed re that two to narcotics John J. by lating defend defendant to French contained this communications between following receiving heroin, ant and this as shown testi French. In evi highlights: dence, judge the district that a monial concluded “connection” been shown between Agent Gallagher met that he testified French, and that the state so French co-defendant August about 7:15 m. joint ments were receivable under the at7 4015 West North Avenue. exception hearsay venture to the rule. Gallagher people” French told “the were See waiting sample around the corner awith urges (7th 1971). Cir. Defendant Gallagher of heroin. to ob- told French Gallagher that French’s revelations to tain it. French was then observed walk- joint cannot be used to venture show ing vicinity defendant, in the who impos because that would “the involve sport reached inside his shirt and with- by bootstraps.” sible feat of levitation something drew handed to which he States, Cass v. United F.2d so, quarter In a French. an hour disagree. We Gallagher French and returned handed plastic wrapped cáse, As in a small the recent container con- Jones there was taining ample hydro- independent heroin defend- of a that evidence Gallagher paid engaged joint ant and chloride mixture. French French were a noteworthy leaving “I think don’t it out would It the trier of facts destroy weight deem the the case did not of that evidence fact.” “very great.” concluded, to be As he sample. told French Gal- deals would in smaller denominations. for $100 waiting lagher people” Defendant said “fine” and then indicated “the were immediately go supply he he French and that would that would be able to all $100 requested needed “from and order “the ounce” Gal- here on.” After this trans- lagher. completed, action additional testi- was mony linking adduced French and was afterwards, defend- French and Soon Gallagher’s defendant as claim that to again nearby. conversing ant were seen light package the second to as Gallagher rejoined in his French then request for additional heroin. people” car and told him “the wouldn’t get Gallagher view, the ounce of heroin for In our this evidence sufficed Gallagher finding judge’s support without made district After $300. telephone (apparently supplied call receive au- that defendant twice French pay sum), told thorization to French with the heroin he in turn transferred LeMoyne agent Gallagher. vicinity him to to the drive Cf. United States Road, Dichiarinte, and Pulaski Street where Gal- lagher French handed French the certiorari denied Mastro sub nom. $300. LeMoyne walked to the corner of 390 U.S. S.Ct. Keystone gave Avenue he defend- 19 L.Ed.2d 1133. where money. quantity ant a He then re- Affirmed. *5 Gallagher’s turned to car and informed they him heroin should have the within STEVENS, Judge (concur- hour, gone “Johnny” an pick and that had ring). up. “Johnny” it French added that my opinion, In United States v. supply was reliable and would be able to not dis- Gallagher anywhere up with to 20-30 tinguishable expressly and should be time, ounces of heroin at a but overruled. “Johnny” money wanted one-third of the delivery. before French said he done past.

business him in

Gallagher togeth- and French remained

er until Fifteen minutes 10:15 m.

later, Gallagher observed French con- versing LeMoyne with defendant at NATIONAL LABOR RELATIONS something Pulaski. Defendant handed BOARD, Petitioner, right placed pants to French who it pocket. Immediately thereafter French LOCAL UNITED BROTHERHOOD Gallagher rejoined at his car. French OF CARPENTERS AND JOINERS OF pocket piece reached in the same for a AMERICA, AFL-CIO, Respondent. containing newspaper plastic- No. Docket 35598. wrapped package containing hydrochloride of a heroin mixture. Appeals, Court Gallagher, paid He handed this to who Second Circuit. him an additional for it. $600 Argued May 12, 1971. agent p. m., At 11:00 Nolan overheard conversing Aug. Decided French and defendant hotdog stand at the of Pulaski corner and Grand Avenue. French asked de- why long get

fendant “stuff,” it took so replied that he go

had to Blue Island for Defend- it.

ant remarked that he did not want to

paid big they bills because aroused

suspicion. agreed French that all future